BK Pavitra and Ors Vs The Union of India UOI - 2

MANU/SC/0738/2019
Neutral Citation: 2019/INSC /671
Equivalent Citation: AIR2019SC 2723, 2019(4) AKR 258, 2019(4)ALT74, 2019(2)ESC 495(SC ), ILR 2019 4411, ILR 2019 4309, 2019/INSC /671,
2019(4)KarLJ1, 2019LabIC 4074, 2019(8)SC ALE205, (2019)16SC C 129, 2019 (10) SC J 1, [2019]7SC R1086, 2019(2)SLJ198(SC )
IN THE SUPREME COURT OF INDIA

M.A. No. 1151 of 2018 in Civil Appeal No. 2368 of 2011, Review Petition (C) Diary Nos.
7833, 10240, 10258, 10859, 12622, 12674, 13047, 14563, 16896 of 2017, M.A. No.
1152 of 2018 in Civil Appeal No. 2369 of 2011, Writ Petition (C) Nos. 764, 769 of 2018,
Writ Petition No. 791 of 2018, Writ Petition (C) Nos. 823, 827, 850, 875, 872, 901, 879
and 1209 of 2018
Decided On: 10.05.2019
Appellants: B.K. Pavitra and Ors.
Vs.
Respondent: The Union of India (UOI) and Ors.
Hon'ble Judges/Coram:
U.U. Lalit and Dr. D.Y. Chandrachud, JJ.
Case Category:
SERVICE MATTERS - RESERVATION IN SERVICE FOR SC/ST/OBC
Case Note:
Service - Benefit of Consequential Seniority - Validity of Reservation Act -
Sections 3 and 4 of Karnataka Extension of Consequential Seniority to
Government Servants Promoted on Basis of Reservation (to Posts in Civil
Services of the State) Act, 2018 (Reservation Act, 2018) and Articles 14 and
16 of Constitution of India, 1950 - Principal challenge in present batch of
cases was to validity of Reservation Act, 2018 - Whether Reservation Act,
2018 had cured deficiency which was noticed by B.K. Pavitra I in respect of
Reservation Act, 2002.
Facts:
Challenge in present cases is to the validity of Reservation Act, 2018. The
enactment provides, among other things, for consequential seniority to
persons belonging to the Scheduled Castes and Scheduled Tribes promoted
under the reservation policy of the State of Karnataka. The law protects
consequential seniority from 24 April 1978. The Reservation Act, 2018 was
preceded in time by the Karnataka Determination of Seniority of the
Government Servants Promoted on the Basis of the Reservation (to the Posts
in the Civil Services of the State) Act 2002. The constitutional validity of the
Reservation Act, 2002 was challenged in B.K. Pavitra v. Union of India. A two
judge Bench of this Court held Sections 3 and 4 of the Reservation Act 2002
to be ultra vires of Articles 14 and 16 of the Constitution on the ground that,
an exercise for determining "inadequacy of representation", "backwardness"
and the impact on "overall efficiency" had not preceded the enactment of the
law. Such an exercise was held to be mandated by the decision of a
Constitution Bench of this Court in M. Nagaraj v. Union of India. In the
14-07-2023 (Page 1 of 76) www.manupatra.com Indian Institute of Technology Kharagpur

absence of the State of Karnataka having collected quantifiable data on the
above three parameters, the Reservation Act, 2002 was held to be invalid.
The legislature in the State of Karnataka enacted the Reservation Act, 2018
after this Court invalidated the Reservation Act, 2002 in B.K. Pavitra I. The
grievance of the Petitioners is that, the state legislature has virtually re-
enacted the earlier legislation without curing its defects. According to the
Petitioners, it is not open to a legislative body governed by the parameters of
a written constitution to override a judicial decision, without taking away its
basis. On the other hand, the State government has asserted that, an exercise
for collecting "quantifiable data" was in fact carried out, consistent with the
parameters required by the decision in Nagaraj. The Petitioners question both
the process and the outcome of the exercise carried out by the state for
collecting quantifiable data. Karnataka government argued that, the state
legislature is competent to enact a law with retrospective or retroactive
operation. It was further stated that, the legislative competence of the state
legislature to enact law is traceable to Article 16 (4A) and merely because the
legislation confers seniority with effect from 1978, will not lead to its
invalidation.
Held, while dismissing the appeal
1. The decision in B.K. Pavitra I was rendered on 9 February 2017. The Ratna
Prabha Committee was established on 22 March 2017. Its report was
examined by a Cabinet Sub-Committee on 4 August 2017 and was eventually
approved by the Cabinet on 7 August 2017. The Ratna Prabha Committee
report was commissioned to: (i) collect information on cadre wise
representation of SC and ST employees in all government departments; (ii)
collect information on backwardness of SCs and STs; and (iii) study the effect
on the administration due to the promotion of SCs and STs. [88]
2. Once an opinion has been formed by the State government on the basis of
the report submitted by an expert committee which collected, collated and
analysed relevant data, it is impossible for the Court to hold that, the
compelling reasons which Nagaraj requires the State to demonstrate have not
been established. Even if there were to be some errors in data collection, that
will not justify the invalidation of a law which the competent legislature was
within its power to enact. After the decision in B.K. Pavitra I, the Ratna
Prabha Committee was correctly appointed to carry out the required exercise.
Once that exercise has been carried out, the Court must be circumspect in
exercising the power of judicial review to re-evaluate the factual material on
record. [101]
3. The challenge in the present case is to the validity of the Reservation Act,
2018 which provides for consequential seniority. In other words, the nature
or extent of reservation granted to the SCs and STs at the entry level in
appointment is not under challenge. The Reservation Act, 2018 adopts the
principle that consequential seniority is not an additional benefit but a
consequence of the promotion which is granted to the SCs and STs. In
protecting consequential seniority as an incident of promotion, the
Reservation Act, 2018 constitutes an exercise of the enabling power
conferred by Article 16 (4A). The concept of creamy layer has no relevance to
the grant of consequential seniority. There is merit in the submission of the

State of Karnataka that, progression in a cadre based on promotion cannot be
treated as the acquisition of creamy layer status. The decision in Jarnail
rejected the submission that a member of an SC or ST who reaches a higher
post no longer has a taint of untouchability or backwardness. [138]
4. In sustaining the validity of Articles 16 (4A) and 16 (4B) against a
challenge of violating the basic structure, Nagaraj applied the test of width
and the test of identity. The Constitution Bench ruled that, the catch-up Rule
and consequential seniority are not constitutional requirements. They were
held not to be implicit in Clauses (1) to (4) of Article 16. Nagaraj held that
they are not constitutional limitations or principles but are concepts derived
from service jurisprudence. Hence, neither the obliteration of those concepts
nor their insertion would violate the equality code contained in Articles 14,
15 and 16. The principle postulated in Nagaraj is that consequential seniority
is a concept purely based in service jurisprudence. The incorporation of
consequential seniority would hence not violate the constitutional mandate of
equality. This being the true constitutional position, the protection of
consequential seniority as an incident of promotion does not require the
application of the creamy layer test. Articles 16 (4A) and 16 (4B) were held to
not obliterate any of the constitutional limitations and to fulfil the width test.
In the above view of the matter, it is evident that the concept of creamy layer
has no application in assessing the validity of the Reservation Act 2018 which
is designed to protect consequential seniority upon promotion of persons
belonging to the SCs and STs. [139]
5. Sections 3 and 4 of the Reservation Act, 2018 came into force on 17 June
1995. The other provisions came into force "at once" as provided in Section
1(2). Section 4 stipulates that, the consequential seniority already granted to
government servants belonging to the SCs and STs in accordance with the
reservation order with effect from 27 April 1978 shall be valid and shall be
protected. [140]
6. Since promotions granted prior to 1 March 1996 were protected, it was
logical for the legislature to protect consequential seniority. The object of the
Reservation Act, 2018 is to accord consequential seniority to promotees
against roster points. In this view of the matter, we find no reason to hold
that the provisions in regard to retrospectivity in the Ratna Prabha Committee
report are either arbitrary or unconstitutional. [141]
7. The benefit of consequential seniority has been extended from the date of
the Reservation Order 1978 under which promotions based on reservation
were accorded. [142]
8. The Ratna Prabha Committee collected data from thirty one departments of
the State Government of Karnataka. It has been pointed out on behalf of the
State that corporations such as KPTCL and other public sector undertakings
fall within the administrative control of one of the departments of the State
government. The position in thirty one departments was taken as
representative of the position in public employment under the State. The over
representation in KPTCL and PWD has been projected by the Petitioners with
reference to the total number of posts which have been filled. On the other
hand, the quota is fixed and the roster applies as regards the total sanctioned

posts as held in Sabharwal and Nagaraj. On the contrary, the data submitted
by the State of Karnataka indicates that if consequential seniority is not
allowed, there would be under representation of the reserved categories.
Finally, under the Government Order dated 13 April 1999, reservation in
promotion in favour of SC's and ST's has been provided until the
representation for these categories reaches 15 per cent and 3 per cent,
respectively. The State has informed the Court that the above Government
Order is applicable to KPTCL and PWD, as well. [143]
9. The challenge to the constitutional validity of the Reservation Act 2018 is
lacking in substance. Following the decision in B.K. Pavitra I, the State
government duly carried out the exercise of collating and analysing data on
the compelling factors adverted to by the Constitution Bench in Nagaraj. The
Reservation Act, 2018 has cured the deficiency which was noticed by B.K.
Pavitra I in respect of the Reservation Act, 2002. The Reservation Act 2018
does not amount to a usurpation of judicial power by the state legislature. It
is Nagaraj and Jarnail compliant. The Reservation Act, 2018 is a valid exercise
of the enabling power conferred by Article 16 (4A) of the Constitution. [144]
10. The constitutional validity of the Reservation Act, 2018 has been upheld.
Accordingly, the review petitions and miscellaneous applications shall also
stand dismissed in view of the judgment in the present case. [145]
JUDGMENT
Dr. D.Y. Chandrachud, J.
This judgment has been divided into Sections to facilitate analysis. They are
A The constitutional challenge
B The constitutional backdrop to reservations in Karnataka
C Submissions
C.1. Petitioners
C.2 Submissions for the Respondents and intervenors
D Assent to the Bill
E Does the Reservation Act 2018 overrule or nullify B.K. Pavitra I
E.1 Is the basis of B.K. Pavitra I cured in enacting the Reservation Act 2018
E.2 The Ratna Prabha Committee report
F Substantive v. formal equality
F.1 The Constituent Assembly's understanding of Article 16 (4)
F.2 The Constitution as a transformative instrument
G Efficiency in administration

H The issue of creamy layer
I Retrospectivity
J Over representation in KPTCL and PWD
K Conclusion
A The constitutional challenge
1 . The principal challenge in this batch of cases is to the validity of the Karnataka
Extension of Consequential Seniority to Government Servants Promoted on the Basis of
Reservation (to the Posts in the Civil Services of the State) Act 20181. The enactment
provides, among other things, for consequential seniority to persons belonging to the
Scheduled Castes2 and Scheduled Tribes3 promoted under the reservation policy of the
State of Karnataka. The law protects consequential seniority from 24 April 1978.
2 . The Reservation Act 2018 was preceded in time by the Karnataka Determination of
Seniority of the Government Servants Promoted on the Basis of the Reservation (to the
Posts in the Civil Services of the State) Act 20024. The constitutional validity of the
Reservation Act 2002 was challenged in B.K. Pavitra v. Union of India
MANU/SC/0143/2017 : (2017) 4 SCC 620, ("B.K. Pavitra I"). A two judge Bench of this
Court (consisting of Justice Adarsh Kumar Goel and Justice U U Lalit) held Sections 3
and 4 of the Reservation Act 2002 to be ultra vires Articles 14 and 16 of the
Constitution on the ground that an exercise for determining "inadequacy of
representation", "backwardness" and the impact on "overall efficiency" had not
preceded the enactment of the law. Such an exercise was held to be mandated by the
decision of a Constitution Bench of this Court in M. Nagaraj v. Union of India
MANU/SC/4560/2006 : (2006) 8 SCC 212 ("Nagaraj").
In the absence of the State of Karnataka having collected quantifiable data on the above
three parameters, the Reservation Act 2002 was held to be invalid.
3. The legislature in the State of Karnataka enacted the Reservation Act 2018 after this
Court invalidated the Reservation Act 2002 in B.K. Pavitra I. The grievance of the
Petitioners is that the state legislature has virtually re-enacted the earlier legislation
without curing its defects. According to the Petitioners, it is not open to a legislative
body governed by the parameters of a written constitution to override a judicial
decision, without taking away its basis. On the other hand, the State government has
asserted that an exercise for collecting "quantifiable data" was in fact carried out,
consistent with the parameters required by the decision in Nagaraj. The Petitioners
question both the process and the outcome of the exercise carried out by the state for
collecting quantifiable data.
B The constitutional backdrop to reservations in Karnataka
4 . The present case necessitates that this Court weave through the body of precedent
which forms a part of our constitutional jurisprudence on the issue of reservations. In
many ways, the issues before the Court are unique. For, in the post Nagaraj world
which governs this body of law, the State government defends its legislation on the
ground that it has fulfilled the constitutional requirement of collecting quantifiable data
before it enacted the law. If such an exercise has been carried out, the Court will need
to address itself to the standard of judicial review by a constitutional court of a

legislation enacted by a competent legislature. The extent to which a data collection
exercise by the government, which precedes the enactment of the law, may be reviewed
by the Court is a seminal issue. B.K. Pavitra I involved a situation where this Court
invalidated a law on the ground that no exercise of data collection was carried out by
the State of Karnataka. In the present batch of cases, (herein referred to as B.K. Pavitra
II), there is a constitutional challenge to the validity of a law enacted after the State had
undertaken the exercise of collecting quantifiable data. Whether that exercise of data
collection and the enactment of the new law which has emerged on its foundation takes
away the basis of or the cause for the invalidation of the Reservation Act 2002 in B.K.
Pavitra I is an essential question for our consideration.
In this background, we set out the significant facts, in the chequered history of the
present case.
5. In exercise of the power conferred by the proviso to Article 309 of the Constitution,
the Governor of Karnataka framed the Karnataka Government Servant (Seniority Rules)
19575. Rules 2 and 4 provide for seniority on the basis of the period of service in a
given cadre. There was no specific Rule governing seniority in respect of roster
promotions.
Rule 2 inter alia, provides as follows:
2. Subject to the provisions hereinafter contained the seniority of a person in a
particular cadre of service or class of post shall be determined as follows:
(a) Officers appointed substantively in clear vacancies shall be senior
to all persons appointed on officiating or any other basis in the same
cadre of service or class of post;
(b) The seniority inter se of officers who are confirmed shall be
determined according to dates of confirmation, but where the date of
confirmation of any two officers is the same, their relative seniority will
be determined by their seniority inter se while officiating in the same
post and if not, by their seniority inter se in the lower grade.
(c) Seniority inter se of persons appointed on temporary basis will be
determined by the dates of their continuous officiation in that grade
and where the period of officiation is the same the seniority inter se in
the lower grade shall prevail.
Rule 4 provides for the determination of seniority where promotions are made at the
same time on the basis of seniority-cum-merit to a class of posts or cadre:
4 . When promotions to a class of post or cadre are made on the basis of
seniority-cum-merit at the same time, the relative seniority shall be
determined.-
(i) if promotions are made from any one cadre or class of post, by their
seniority inter se in the lower cadre or class of post;
(ii) if promotions are made from several cadres or classes of posts of
the same grade, by the period of service in those grades;
(iii) if promotions are made from several cadres or classes of posts, the

grades of which are not the same, by the order in which the candidates
are arranged by the authority making the promotion, in consultation
with Public Service Commission where such consultation is necessary,
taking into consideration the order in which promotions are to be made
from those several cadres or classes of post.
Rule 4-A provides for the determination of the seniority where promotion is made by
selection:
4-A When promotions to a class of post or cadre are made by selection at the
same time either from several cadres or classes of post or from same cadre or
class of post by the order in which the candidates are arranged in order of merit
by the Appointing Authority making the selection, in consultation with Public
Service Commission where such consultation is necessary.
[Explanation-For purposes of this rule, "several cadres or classes of post" shall
be deemed to include cadres or classes of post of different grades from which
recruitment is made in any specified order of priority in accordance with any
special Rules of recruitment.].
6 . Reservation for persons belonging to SCs and STs in specified categories of
promotional posts was introduced by a Government Order6 dated 27 April 1978 of the
Government of Karnataka. Reservation in promotional posts for SCs was set at 15 per
cent and for STs at 3 per cent in all cadres up to and inclusive of the lowest category of
Class I posts in which there is no element of direct recruitment or where the direct
recruitment does not exceed 662/3 per cent. A 33 point roster was applicable to each
cadre of posts under appointing authorities. Inter-se seniority amongst persons
promoted on any occasion was to be determined in accordance with Rules 4 and 4-A, as
the case may be, of the Rules 1957. It also stipulated that vacancies would not be
carried forward.
7 . On 1 June 1978, the State government issued an Official Memorandum7 providing
guidelines and clarifications for implementing the Government Order dated 27 April
1978. The Official Memorandum stipulated that after promotion, seniority among
candidates promoted on the basis of seniority-cum-merit shall, on each occasion, be
fixed in accordance with Rule 4 of the Rules 1957. In other words, seniority would be
governed by the inter se seniority in the cadre from which candidates were promoted.
For candidates promoted by selection, seniority would be governed by Rule 4-A: the
ranking would be as assigned in the list of selected candidates by the appointing
authority. The Official Memorandum dated 1 June 1978 thus provided, what can be
described as the principle of consequential seniority to reserved category candidates.
8 . By a notification8 dated 1 April 1992, a proviso was inserted to Rule 8 of the
Karnataka Civil Services (General Recruitment) Rules 19779 which provided that
vacancies not filled by SCs and STs would be treated as a backlog and would be made
good in the future. This provision was upheld by a two judge Bench of this Court in
Bhakta Ramegowda v. State of Karnataka MANU/SC/0240/1997 : (1997) 2 SCC 661
("Bhakta Ramegowda").
9. On 16 November 1992, a nine judge Bench of this Court delivered judgment in Indra
Sawhney v. Union of India MANU/SC/0104/1993 : 1992 Supp (3) SCC 217 ("Indra
Sawhney"). The issue as to whether reservations of promotional posts were

contemplated by Article 16 (4)10-when it used the expression 'appointment' was among
the issues dealt with. Justice B P Jeevan Reddy speaking for a plurality of four judges
held that:
(i) Reservations contemplated by Article 16 (4) of the Constitution should not
exceed 50 per cent11. While 50 per cent shall be the rule, "it is necessary not to
put out of consideration certain extraordinary situations inherent in the great
diversity of this country and the people"12. But, any relaxation of the strict Rule
must be with extreme caution and on a special case being made out12;
(ii) Reservations Under Article 16 (4) could only be provided at the time of
entry into government service but not in matters of promotion. However, this
principle would operate only prospectively and not affect promotions already
made. Moreover, reservations already provided in promotions shall continue in
operation for a period of five years from the date of the judgment13;
(iii) The creamy layer can be and must be excluded. Justice B P Jeevan Reddy
held:
792....While we agree that Clause (4) aims at group backwardness, we
feel that exclusion of such socially advanced members will make the
'class' a truly backward class and would more appropriately serve the
purpose and object of Clause (4). (This discussion is confined to Other
Backward Classes only and has no relevance in the case of Scheduled
Tribes and Scheduled Castes).14
(iv) The adequacy of the representation of a backward class of citizens in
services "is a matter within the subjective satisfaction of the State"15, since the
requirement in Article 16 (4) is preceded by the words "in the opinion of the
State". The basis of the standard of judicial review was formulated thus:
798....This opinion can be formed by the State on its own, i.e., on the
basis of the material it has in its possession already or it may gather
such material through a Commission/Committee, person or authority.
All that is required is, there must be some material upon which the
opinion is formed. Indeed, in this matter the court should show due
deference to the opinion of the State, which in the present context
means the executive. The executive is supposed to know the existing
conditions in the society, drawn as it is from among the representatives
of the people in Parliament/Legislature. It does not, however, mean
that the opinion formed is beyond judicial scrutiny altogether. The
scope and reach of judicial scrutiny in matters within subjective
satisfaction of the executive are well and extensively stated in Barium
Chemicals v. Company Law Board MANU/SC/0037/1966 : [1966 Supp
SCR 311: AIR 1967 SC 295] which need not be repeated here. Suffice it
to mention that the said principles apply equally in the case of a
constitutional provision like Article 16(4) which expressly places the
particular fact (inadequate representation) within the subjective
judgment of the State/executive.16
(v) The backward class of citizens cannot be identified only and exclusively with
reference to an economic criterion17. It is permissible to identify a backward class of

citizens with reference to occupation, income as well caste.
1 0 . In view of the decision of this Court in Indra Sawhney, the provisions for
reservation in matters of promotion under the Government Order of 1978, as clarified
by the Official Memorandum dated 1 June 1978 were saved for a period of five years
from 16 November 1992. Promotions already made were saved.
11. On 17 June 1995, Parliament acting in its constituent capacity adopted the seventy-
seventh amendment by which Clause (4A) was inserted into Article 16 to enable
reservations to be made in promotion in favour of the SCs and STs18. The amendment
came into force on 17 June 1995, before the expiry of five years from 16 November
1992 (the date on which the decision in Indra Sawhney was pronounced). As a result of
the decision in Indra Sawhney and the seventy-seventh amendment to the Constitution,
the provision for reservations made by the Government of Karnataka under the
Government Order of 1978 stood saved and continued to operate.
12. On 10 February 1995, a Constitution Bench of this Court rendered a judgment in
R.K. Sabharwal v. State of Punjab MANU/SC/0259/1995 : (1995) 2 SCC 745
("Sabharwal") and held that:
(i) Once the prescribed percentage of posts is filled by reserved category
candidates by the operation of the roster, the numerical test of adequacy is
satisfied and the roster would cease to operate19;
(ii) The percentage of reservation has to be worked out in relation to the
number of posts which form the cadre strength. The concept of vacancy has no
relevance in operating the percentage of reservation20; and
(iii) The interpretation placed on the working of the roster shall operate
prospectively21 from 10 February 1995.
13. On 1 October 1995, a two judge Bench of this Court held in Union of India v. Virpal
Singh Chauhan MANU/SC/0113/1996 : (1995) 6 SCC 684 ("Virpal Singh") that the state
could provide that even if a candidate belonging to the SC or ST is promoted earlier on
the basis of reservation and on the application of the roster, this would entitle such a
person to seniority over a senior belonging to the general category in the feeder cadre.
However, a senior belonging to the general category who is promoted to a higher post
subsequently would regain seniority over the reserved candidate who was promoted
earlier. This Rule came to be known as the catch-up rule. The two judge Bench directed
that the above principle would be followed with effect from the date in the judgment in
Sabharwal 22.
1 4 . Six months after the decision in Virpal Singh, on 1 March 1996, a three judge
Bench of this Court in Ajit Singh Januja v. State of Punjab MANU/SC/0319/1996 :
(1996) 2 SCC 715 ("Ajit Singh I"), adopted the catch-up Rule propounded in Virpal
Singh, to the effect that the seniority between reserved category candidates and general
candidates in the promoted category shall continue to be governed by their inter se
seniority in the lower grades. This Court held that a balance has to be maintained so as
to avoid "reverse discrimination" and, a Rule or circular which gives seniority to a
candidate belonging to the reserved category promoted on the basis of roster points
would violate Articles 14 and 16 of the Constitution.
1 5 . On 24 June 1997, the Government of Karnataka issued a Government Order23

formulating guidelines in regard to the manner in which backlog vacancies were
required to be filled. On 3 February 1999, the Government of Karnataka issued another
Government Order24 pursuant to Article 16 (4A) stipulating a modified policy of
reservation in matters of promotion. The 1999 Order provides for reservation in
promotion to the extent of 15 per cent for SCs and 3 per cent for STs of the posts in a
cadre up to and inclusive of the lowest category of group A posts in each service for
which there is no element of direct recruitment or, where the proportionate of direct
recruitment does not exceed 662/3 per cent. While providing for the continuance of
reservations in promotion, the Government Order stipulated that reservation in favour of
persons belonging to the SCs shall continue to operate until their representation in a
cadre reaches 15 per cent. Reservations in promotion for the STs would continue to
operate until their representation in a cadre reaches 3 per cent. Thereafter, reservation
in promotion shall continue only to maintain the representation to the extent of the
above percentages for the respective categories. On 13 April 1999, the Government of
Karnataka issued another Government Order25 modifying the 1999 Order to provide that
reservations in promotions in favour of the SCs and STs shall continue to operate by
applying the existing roster to the vacancies till the representation of persons belonging
to these categories reached 15 per cent or 3 per cent as the case may be, respectively.
Moreover, after the existing backlog was cleared, the representation of persons
belonging to SCs and STs would be maintained to the extent of 15 per cent and 3 per
cent of the total working strength.
1 6 . In Jagdish Lal v. State of Haryana MANU/SC/0596/1997 : (1997) 6 SCC 538,
("Jagdish Lal") a three judge Bench of this Court took a view contrary to the decision in
Ajit Singh I. The decision in Jagdish Lal held that by virtue of the principle of
continuous officiation, a candidate belonging to a reserved category who is promoted
earlier than a general category candidate due to an accelerated promotion would not
lose seniority in the higher cadre. This conflict of decisions was resolved by a
Constitution Bench in Ajit Singh v. State of Punjab MANU/SC/0575/1999 : (1999) 7 SCC
209 ("Ajit Singh II"). The Constitution Bench held that Article 16 (4A) is only an
enabling provision for reservation in promotion. In consequence, roster point promotees
belonging to the reserved categories could not count their seniority in the promoted
category from the date of continuance officiation in the promoted post in relation to
general category candidates who were senior to them in the lower category and who
were promoted later. Where a senior general candidate at the lower level is promoted
later than a reserved category candidate, but before the further promotion of the latter,
such a person will have to be treated as senior at the promotional level in relation to
the reserved candidate who was promoted earlier. The Constitution Bench accordingly
applied the catch-up Rule for determining the seniority of roster point promotees vis-a-
vis general category candidates. The Court held that any circular, order or Rule that was
issued to confer seniority to roster point promotees would be invalid. However, the
Constitution Bench directed that candidates who were promoted contrary to the above
principles of law before 1 March 1999 (the date of the decision in Ajit Singh I) need not
be reverted.
17. Contending that there was no provision permitting seniority to be granted in respect
of roster point promotees belonging to the reserved categories, the reservation policy of
the State of Karnataka came to be challenged before this Court in M G Badappanavar v.
State of Karnataka MANU/SC/0766/2000 : (2001) 2 SCC 666 ("Badappanavar"). A three
judge Bench, relying on the decisions in Ajit Singh I, Ajit Singh II and Sabharwal
reiterated the principle that Article 16 (4A) does not permit the conferment of seniority
to roster point promotees. This Court held that there was no specific Rule in the State of

Karnataka permitting seniority to be counted in respect of a roster promotion. It held
thus:
12....The roster promotions were, it was held, meant only for the limited
purpose of due representation of backward classes at various levels of service.
If the Rules are to be interpreted in a manner conferring seniority to the roster-
point promotees, who have not gone through the normal channel where basic
seniority or selection process is involved, then the rules, it was held will be
ultra vires Article 14 and Article 16 of the Constitution of India. Article 16(4-A)
cannot also help. Such seniority, if given, would amount to treating unequals
equally, rather, more than equals.
26
18. The conferment of seniority to roster point promotees of the reserved categories
would, in view of the court in Badappanavar, violate the equality principle which was
part of the basic structure of the Constitution. The Court directed that the seniority lists
and promotions be reviewed in accordance with its directions but those who were
promoted before 1 March 1996 on principles contrary to Ajit Singh II and those who
were promoted contrary to Sabharwal before 10 February 1995 need not be reverted.
19. The Constitution (Eighty-fifth Amendment) Act 2001 was enacted with effect from
17 June 1995. Article 16 (4A), as amended, reads thus:
Nothing in this Article shall prevent the State from making any provision for
reservation in matters of promotion, with consequential seniority, to any
class or classes of posts in the services under the State in favour of the
Scheduled Castes and the Scheduled Tribes which, in the opinion of the State,
are not adequately represented in the services under the State.
(Emphasis supplied)
The purpose of the amendment was to enable the grant of consequential seniority to
reserved categories promotees. The significance of the date on which the eighty-fifth
amendment came into force-17 June 1995-is that it coincides with the coming into force
of the seventy-seventh amendment which enabled reservations in promotions to be
made for the SCs and STs.
20. In 2002, the Karnataka State Legislature enacted the Reservation Act 2002. The law
came into force on 17 June 1995. It provided for consequential seniority to roster point
promotees based on the length of service in a cadre, making the catch-up Rule
propounded in Ajit Singh II inapplicable. The earlier decision of this Court in
Badappanavar had held that there was no specific Rule for the conferment of seniority
to roster point promotees. By the enactment of the Reservation Act 2002 with effect
from 17 June 1995, the principle of consequential seniority was statutorily incorporated
as a legislative mandate.
21. The validity of the seventy-seventh and eighty-fifth amendments to the Constitution
and of the legislation enacted in pursuance of those amendments was challenged before
a Constitution Bench of this Court in Nagaraj. The Constitution Bench analysed whether
the replacement of the catch-up Rule with consequential seniority violated the basic
structure and equality principle under the Constitution. Upholding the constitutional
validity of the amendments, this Court held that the catch-up Rule and consequential
seniority are judicially evolved concepts based on service jurisprudence. Hence, the

exercise of the enabling power Under Article 16 (4A) was held not to violate the basic
features of the Constitution:
79. Reading the above judgments, we are of the view that the concept of
"catch-up" Rule and "consequential seniority" are judicially evolved concepts to
control the extent of reservation. The source of these concepts is in service
jurisprudence. These concepts cannot be elevated to the status of an axiom like
secularism, constitutional sovereignty, etc. It cannot be said that by insertion of
the concept of "consequential seniority" the structure of Article 16(1) stands
destroyed or abrogated. It cannot be said that "equality code" Under Articles
14, 15 and 16 is violated by deletion of the "catch-up" rule. These concepts are
based on practices. However, such practices cannot be elevated to the status of
a constitutional principle so as to be beyond the amending power of Parliament.
Principles of service jurisprudence are different from constitutional limitations.
Therefore, in our view neither the "catch-up" Rule nor the concept of
"consequential seniority" is implicit in Clauses (1) and (4) of Article 16 as
correctly held in Virpal Singh Chauhan.27
22. The Constitution Bench held that Article 16 (4A) is an enabling provision. The state
is not bound to make reservations for the SCs and STs in promotions. But, if it seeks to
do so, it must collect quantifiable data on three facets:
(i) The backwardness of the class;
(ii) The inadequacy of the representation of that class in public employment;
and
(iii) The general efficiency of service as mandated by Article 335 would not be
effected.
23. The principles governing this approach emerge from the following extracts from the
decision:
107. ...If the State has quantifiable data to show backwardness and inadequacy
then the State can make reservations in promotions keeping in mind
maintenance of efficiency which is held to be a constitutional limitation on the
discretion of the State in making reservation as indicated by Article 335. As
stated above, the concepts of efficiency, backwardness, inadequacy of
representation are required to be identified and measured...28
...
1 1 7 . ... in each case the Court has got to be satisfied that the State has
exercised its opinion in making reservations in promotions for SCs and STs and
for which the State concerned will have to place before the Court the requisite
quantifiable data in each case and satisfy the Court that such reservations
became necessary on account of inadequacy of representation of SCs/STs in a
particular class or classes of posts without affecting general efficiency of
service as mandated Under Article 335 of the Constitution.29
...
123. ... In this regard the State concerned will have to show in each case the

existence of the compelling reasons, namely, backwardness, inadequacy of
representation and overall administrative efficiency before making provision for
reservation. As stated above, the impugned provision is an enabling provision.
The State is not bound to make reservation for SCs/STs in matters of
promotions. However, if they wish to exercise their discretion and make such
provision, the State has to collect quantifiable data showing backwardness of
the class and inadequacy of representation of that class in public employment
in addition to compliance with Article 335. It is made clear that even if the
State has compelling reasons, as stated above, the State will have to see that
its reservation provision does not lead to excessiveness so as to breach the
ceiling limit of 50% or obliterate the creamy layer or extend the reservation
indefinitely.30
The Constitution Bench held that the constitutional amendments do not abrogate the
fundamentals of equality:
110....the boundaries of the width of the power, namely, the ceiling limit of
50% (the numerical benchmark), the principle of creamy layer, the compelling
reasons, namely, backwardness, inadequacy of representation and the overall
administrative efficiency are not obliterated by the impugned amendments. At
the appropriate time, we have to consider the law as enacted by various States
providing for reservation if challenged. At that time we have to see whether
limitations on the exercise of power are violated. The State is free to exercise
its discretion of providing for reservation subject to limitation, namely, that
there must exist compelling reasons of backwardness, inadequacy of
representation in a class of post(s) keeping in mind the overall administrative
efficiency. It is made clear that even if the State has reasons to make
reservation, as stated above, if the impugned law violates any of the above
substantive limits on the width of the power the same would be liable to be set
aside.31
These observations emphasise the parameters which must be applied where a law has
been enacted to give effect to the provisions of Article 16 (4A). The legislative power of
the state to enact such a law is preserved. The exercise of the power to legislate is
conditioned by the existence of "compelling reasons" namely; the existence of
backwardness, the inadequacy of representation and overall administrative efficiency.
Elsewhere in the decision, the Constitution Bench treated these three parameters as
"controlling factors" for making reservations in promotions for SCs and STs. They were
held to be constitutional requirements crucial to the preservation of "the structure of
equality of opportunity" in Article 16. The Constitution Bench left the validity of the
individual enactments of the states to be adjudicated upon separately by Benches of this
Court.
24. In B.K. Pavitra I, a two judge Bench of this Court considered a challenge to the
Reservation Act 2002 providing for consequential seniority on the ground that the
exercise which was required to be carried out in Nagaraj had not been undertaken by
the State and there was no provision for the exclusion of the creamy layer. The validity
of the Reservation Act 2002 had been upheld by a Division Bench of the Karnataka High
Court. In B.K. Pavitra I, this Court struck down Sections 3 and 4 of the Reservation Act
2002 as ultra vires Articles 14 and 16. The Petitioner contended that the law laid down
by this Court in Badappanavar, Ajit Singh II and Virpal Singh remained applicable
despite the Constitution (Eighty-fifth Amendment) Act 2001. Moreover, it was contended
that the Government of Karnataka had not complied with the tests laid down in Nagaraj

and had failed to provide any material or data to show inadequacy of representation.
Moreover, no consideration was given to the issue of overall administrative efficiency.
The principal challenge was that an exercise for determining "backwardness",
"inadequacy of representation", and "overall efficiency" in terms of the decision in
Nagaraj had not been carried out.
25. Relying on the decisions of this Court in Suraj Bhan Meena v. State of Rajasthan
MANU/SC/1042/2010 : (2011) 1 SCC 467, Uttar Pradesh Power Corporation Ltd. v.
Rajesh Kumar MANU/SC/0334/2012 : (2012) 7 SCC 1 and S. Panneer Selvam v. State of
Tamil Nadu MANU/SC/0937/2015 : (2015) 10 SCC 292 ("Panneer Selvam"), a two judge
Bench of this Court affirmed that the exercise laid down in Nagaraj for determining
"inadequacy of representation", "backwardness" and "overall efficiency" is necessary for
recourse to the enabling power Under Article 16 (4A) of the Constitution. The Court held
that the Government of Karnataka had failed to place material on record showing that
there was a compelling necessity for the exercise of the power Under Article 16 (4A).
Hence, the directions laid down by this Court in Nagaraj were not followed. Striking
down Sections 3 and 4 of the Reservation Act 2002, this Court held thus:
2 9 . It is clear from the above discussion in S. Panneer Selvam case that
exercise for determining "inadequacy of representation", "backwardness" and
"overall efficiency", is a must for exercise of power Under Article 16(4-A). Mere
fact that there is no proportionate representation in promotional posts for the
population of SCs and STs is not by itself enough to grant consequential
seniority to promotees who are otherwise junior and thereby denying seniority
to those who are given promotion later on account of reservation policy. It is
for the State to place material on record that there was compelling necessity for
exercise of such power and decision of the State was based on material
including the study that overall efficiency is not compromised. In the present
case, no such exercise has been undertaken. The High Court erroneously
observed that it was for the Petitioners to plead and prove that the overall
efficiency was adversely affected by giving consequential seniority to junior
persons who got promotion on account of reservation. Plea that persons
promoted at the same time were allowed to retain their seniority in the lower
cadre is untenable and ignores the fact that a senior person may be promoted
later and not at the same time on account of roster point reservation. Depriving
him of his seniority affects his further chances of promotion. Further plea that
seniority was not a fundamental right is equally without any merit in the
present context. In absence of exercise Under Article 16(4-A), it is the "catch-
up" Rule which fully applies. It is not necessary to go into the question whether
the Corporation concerned had adopted the Rule of consequential seniority.32
The Court clarified that the decision will not affect those who have already retired and
availed of financial benefits. It was further directed that promotions granted to existing
employees based on consequential seniority are liable to be reviewed and that the
seniority list be revised in terms of the decision. Three months were granted to take
further consequential action. Petitions seeking a review of the decision have been
tagged with the present proceedings.
26. After the decision of this Court in B.K. Pavitra I, on 22 March 2017, the Government
of Karnataka constituted the Ratna Prabha Committee33 headed by the Additional Chief
Secretary to the State of Karnataka to submit a report on the backwardness and
inadequacy of representation of SCs and STs in the State Civil Services and the impact
of reservation on overall administrative efficiency in the State of Karnataka. The tasks

entrusted to the Committee were to:
1) Collect information on the cadre-wise representation of Scheduled Castes
and Scheduled Tribes in all the Government Departments;
2) Collect information regarding backwardness of Scheduled Castes and
Scheduled Tribes; and
3) Study the effect on the administration due to the provision of reservation in
promotion to the Scheduled Castes and Scheduled Tribes.
2 7 . On 5 May 2017, the Ratna Prabha Committee submitted a report, titled as the
Report on Backwardness, Inadequacy of Representation and Administrative Efficiency in
Karnataka'34. The Government of Karnataka, through its Department of Personnel and
Administrative Reforms, submitted the Ratna Prabha Committee report to the Law
Commission of Karnataka on 8 June 2017. The Law Commission sought to opine on
'whether the data collected and reasons assigned by the Ratna Prabha Committee
constitute a valid basis for validating the law' and submitted its report on 27 July 2017.
2 8 . In the meantime, the Petitioners filed contempt petitions contending that the
directions of this Court in B.K. Pavitra I to the State of Karnataka to review the seniority
list were not complied with. The State of Karnataka filed applications for extension of
time for compliance. On 20 March 2018, this Court disposed of the petitions rejecting
the applications for extension of time for compliance with the decision in B.K. Pavitra I
and granted one month time to take any consequential action. The State of Karnataka
subsequently filed compliance affidavits before this Court stating that the exercise
directed by the decision in B.K. Pavitra I had been carried out.
29. On the basis of the Ratna Prabha Committee report, the Government of Karnataka
introduced the Karnataka Extension of Consequential Seniority to Government Servants
Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Bill
2017. The Bill was passed by the Legislative Assembly on 17 November 2017 and by
the Legislative Council on 23 November 2017. On 16 December 2017, the Governor of
the Karnataka reserved the Bill for the consideration of the President of India Under
Article 200 of the Constitution. The Bill received the assent of the President on 14 June
2018 and was published in the official Gazette on 23 June 2018.
30. Sections 3, 4 and 5 of the Reservation Act 2018 provides as follows:
3 . Determination of Seniority of the Government Servants Promoted on the
basis of Reservation. Notwithstanding anything contained in any other law for
the time being in force, the Government Servants belonging to the Scheduled
Castes and the Scheduled Tribes promoted in accordance with the policy of
reservation in promotion provided for in the Reservation Order shall be entitled
to consequential seniority. Seniority shall be determined on the basis of the
length of service in a cadre:
Provided that the seniority inter-se of the Government Servants
belonging to the Scheduled Castes and the Scheduled Tribes as well as
those belonging to the unreserved category, promoted to a cadre, at
the same time by a common order, shall be determined on the basis of
their seniority inter-se, in the lower cadre.
Provided further that where the posts in a cadre, according to the Rules

of recruitment applicable to them are required to be filled by promotion
from two or more lower cadres,-
(i) The number of vacancies available in the promotional
(higher) cadre for each of the lower cadres according to the
Rules of recruitment applicable to it shall be calculated; and
(ii) The roster shall be applied separately to the number of
vacancies so calculated in respect of each of those lower
cadres:
Provided also that the serial numbers of the roster points
specified in the Reservation Order are intended only to
facilitate calculation of the number of vacancies reserved for
promotion at a time and such roster points are not intended to
determine inter-se seniority of the Government Servants
belonging to the Scheduled Castes and the Scheduled Tribes
vis-a-vis the Government Servants belonging to the unreserved
category promoted at the same time and such inter-se seniority
shall be determined by their seniority inter-se in the cadre from
which they are promoted, as illustrated in the Schedule
appended to this Act.
4. Protection of consequential seniority already accorded from 27th April 1978
onwards.-Notwithstanding anything contained in this Act or any other law for
the time being in force, the consequential seniority already accorded to the
Government servants belonging to the Scheduled Castes and the Scheduled
Tribes who were promoted in accordance with the policy of reservation in
promotion provided for in the Reservation Order with effect from the Twenty
Seventh Day of April, Nineteen Hundred and Seventy Eight shall be valid and
shall be protected and shall not be disturbed.
5. Provision for review.-All promotions to the posts belonging to the State Civil
Services shall be within the extent and in accordance with the provisions of the
reservation orders and other Rules pertaining to method of recruitment and
seniority. The Appointing Authority shall revise and redraw the existing
seniority lists to ensure that the promotions are made accordingly:
Provided that subsequent to such a review, wherever it is found that
Government Servants belonging to the Scheduled Castes and Scheduled
Tribes were promoted against reservation and backlog vacancies in
excess or contrary to extent of reservation provided in the reservation
orders shall be adjusted and fitted with reference to the roster points in
accordance with the reservation orders issued from time to time by
assigning appropriate dates of eligibility. In case, if persons belonging
to the Scheduled Castes and the Scheduled Tribes who have already
been promoted against reservation or backlog vacancies in excess or
contrary to the extent of reservation provisions cannot get adjusted and
fitted against the roster points they shall be continued against
supernumerary posts, to be created by the concerned administrative
department presuming concurrence of Finance Department, in the
cadres in which they are currently working, till they get the date of
eligibility for promotion in that cadre.

Section 9 provides for the validation of action taken in respect of promotions since 27
April 1978:
9. Validation of action taken under the provisions of this Act.-Notwithstanding
anything contained in any Judgment, Decree or Order of any court, tribunal or
other authority contrary to Section 3 and 4 of this Act any action taken or done
in respect of any promotions made or purporting to have been made and any
action or thing taken or done, all proceedings held and any actions purported to
have been done since 27th April, 1978 in relation to promotions as per Sections
3 and 4 of this Act, before the publication of this Act shall be deemed to be
valid and effective as if such promotions or action or thing has been made,
taken or done under this Act and accordingly:(a) no suit or other proceedings
shall be maintained or continued in any court or any tribunal or before any
authority for the review of any such promotions contrary to the provisions of
this Act; and (b) no court shall enforce any decree or order to direct the review
of any such cases contrary to the provisions of this Act.
Section 1(2) provides that the Reservation Act 2018 came into force with effect from 17
June 1995 (the effective date of the seventy-seventh and eighty-fifth constitutional
amendments).
31. These proceedings were instituted to assail the vires of the Reservation Act 2018.
The principal contention which has been urged is that the Reservation Act 2018 does
not take away basis of the decision of this Court in B.K. Pavitra I and is ultra vires. All
matters have been admitted for hearing and tagged together.
32. On 27 July 2018, when the batch of cases was listed for hearing, it was suggested
by this Court that the status quo may not be altered pending consideration of the
matter. The Advocate General for the State of Karnataka orally agreed and accepted an
order of status quo. The Government of Karnataka issued a circular on 3 August 2018
with a direction to maintain status quo and not affect the process of
promotion/demotion till further orders from the government. These directions were
issued to all autonomous bodies, universities, public enterprises, commissions,
corporations, boards and to institutions availing aid from the government under their
administrative control.
33. In Jarnail Singh v. Lachhmi Narain Gupta MANU/SC/1053/2018 : 2018 (10) SCC
396, ("Jarnail') a Constitution Bench of this Court considered whether the decision in
Nagaraj requires to be referred to a larger Bench since:
(i) It requires the state to collect quantifiable data showing backwardness of the
SCs and STs contrary to the nine judge Bench decision in Indra Sawhney;
(ii) The creamy layer principle was not applied to SCs and STs in Indra
Sawhney; and
(iii) In applying the creamy layer principle, Nagaraj conflicts with the decision
in EV Chinnaiah v. State of AP MANU/SC/0960/2004 : (2005) 1 SCC 394
("Chinnaiah").
34. In Jarnail, the Constitution Bench held that:
(i) The decision in Chinnaiah holds, in essence, that a state law35 cannot
further sub-divide the SCs into sub categories. Such an exercise would be

violative of Article 341(2) since only an Act of Parliament and not the state
legislatures can make changes in the Presidential list. Chinnaiah did not dwell
on any aspect on which the constitutional amendments were upheld in Nagaraj.
Hence, it was not necessary for Nagaraj to advert to the decision in Chinnaiah.
Chinnaiah dealt with a completely different problem and not with the
constitutional amendments, which were dealt with in Nagaraj36;
(ii) The decision of the Constitution Bench in Nagaraj, insofar as it requires the
state to collect quantifiable data on backwardness in relation to the SCs and
STs is contrary to Indra Sawhney and would have to be declared to be bad on
this ground37; and
(iii) Constitutional courts, when applying the principle of reservation will be
within their jurisdiction to exclude the creamy layer on a harmonious
construction on Articles 14 and 16 along with Articles 341 and 34238. The
creamy layer principle is an essential aspect of the equality code.
35. On 12 October 2018, the State of Karnataka submitted before this Court that since a
legislation has been enacted by the state legislature and in view of the judgment of the
Constitution Bench in Jarnail, the State would no longer proceed on the oral assurance
of the Advocate General and would not be bound to it. On the other hand, it was urged
by learned Counsel appearing for the Petitioners that the intent of the Reservation Act
2018 was only to nullify the effect of the judgment in B.K. Pavitra I. Counsel urged that
in view of the decisions of this Court including those in Shri Prithvi Cotton Mills Ltd. v.
Broach Borough Municipality MANU/SC/0057/1969 : (1969) 2 SCC 283 ("Prithvi Cotton
Mills Ltd") and Madan Mohan Pathak v. Union of India ("Madan Mohan Pathak")
MANU/SC/0253/1978 : (1978) 2 SCC 50, it was not open to the legislature to render a
judgment of this Court ineffective without taking away its basis or foundation. Since the
case was of an urgent nature, the proceedings were listed on 23 October 2018 for
commencement of final hearing.
3 6 . On 27 February 2019, the State of Karnataka issued a Government Order39
directing that:
In the circumstances explained in the preamble, the following instructions are
hereby issued subject to the conditions that the officers/officials, who have
been reverted, shall be reposted to the cadres held by them immediately prior
to their reversion and if vacant posts are not available in those cadres,
supernumerary posts shall be created to accommodate them. It is also ordered
that the officers/officials working at present in those cadres, belonging to any
category, shall not be reverted.
The Government Order was made subject to the outcome of these proceedings. On 1
March 2019, this Court granted a stay on the operation of the Government Order dated
27 February 2019. This Court observed that since the case was in the concluding stages
of the hearing, it would not be appropriate to alter the present status when the matter
was in seisin of the Court.
C Submissions
C.1. Petitioners
37. In adjudicating upon the challenge to the constitutional validity of the Reservation

Act 2018, we have heard the erudite submissions of Dr Rajeev Dhavan, learned Senior
Counsel appearing on behalf of the Petitioners. Prefacing his submissions, Dr Rajeev
Dhavan has adverted to the following issues which arise for the determination of this
Court:
A Is the Reservation Act 2018 valid?
(a) Does it not peremptorily overrule the decision of this Court in B.K.
Pavitra I without altering the basis of the decision?
(b) Does it violate the law laid down by this Court in Badappanavar on
seniority?
(c) Does the background to the enactment to the Reservation Act 2018
reveal a manifest intent to overrule the decision in B.K. Pavitra I?
(d) Was the reference of the Bill by the Governor of Karnataka to the
President Under Article 200 of the Constitution and the subsequent
events which took place constitutionally valid? In this context, could
the Bill have been brought into force without the assent of the
Governor?
B Is the Reservation Act 2018 compliant with the principles enunciated in the
Constitution Bench decisions in Nagaraj and Jarnail? Does the report of the
Ratna Prabha Committee dated 5 May 2017 constituted an adequate and
appropriate basis to support the validity of the Act and its implementation?
C Does the Reservation Act 2018 apply in the present writ petitions (instituted
by B.K. Pavitra and Shivakumar) to those departments where there is over
representation or in public corporations not covered by the Ratna Prabha report
or the legislation?
38. While we will be dealing with the submissions urged by Dr Dhavan in the course of
our analysis, it would be appropriate at this stage to advert to the salient aspects of the
submissions under the following heads:
A Usurpation of judicial power
39. Dr Dhavan has urged that the Reservation Act 2018 was enacted in a hurry with no
purpose other than to overrule the decision in B.K. Pavitra I, while the issue of
implementation was still pending. The decision in B.K. Pavitra I was rendered on 19
February 2017. On 22 March 2017, a Government Order was issued appointing the
Additional Chief Secretary to submit a report on backwardness, inadequacy of
representation and the impact of reservation on efficiency. The report was submitted on
5 May 2017. On 26 July 2017, the report was accepted by the State Cabinet which
constituted a sub-committee to examine the matter and submit a draft Bill. The State
Law Commission recommended the State to pass a legislation with retrospective effect
by curing the infirmities and factors noticed in the decision in B.K. Pavitra I. On 4
August 2017, the Cabinet Sub-Committee submitted its decision based on the report. On
7 August 2017, the Cabinet approved the proposed Bill. The Bill was introduced in the
Karnataka State Legislative Assembly on 14 November 2017 and was passed on 17
November 2017. The Bill was passed by the State Legislative Council on 23 November
2017 and was submitted to the Governor on 6 December 2017. The Bill was reserved by
the Governor for the consideration of the President. On 15 February 2018, 9 March 2018

and 18 April 2018, the Union Government in the Ministry of Home Affairs sought
clarifications from the State government which were provided on 16 March 2018 and 23
April 2018. The Bill received the assent of the President on 14 June 2018, and was
published in the official Gazette and came into force on 23 June 2018.
40. On the basis of the above facts, Dr Dhavan submitted that:
(i) There was no compelling necessity to overrule B.K. Pavitra I "except political
necessities";
(ii) A comparison of the provisions of the Reservation Act 2002 with the
Reservation Act 2018 indicates that:
(a) The Reservation Act 2018 is substantively the same as the
Reservation Act 2002;
(b) The change in the basis of the decision in B.K. Pavitra I is on the
factum of the Ratna Prabha Committee report;
(c) "Compelling necessities" are mentioned but their existence is not
demonstrated;
(d) The title of the Reservation Act 2018 is limited to consequential
seniority which is not mentioned in the law;
(e) Section 5 allows for an unlimited backlog and the creation of
supernumerary posts for SCs and STs;
(f) Section 5 presumes the permission of the Finance Department and
visualizes an "excess", which will invalidate the law; and
(g) Section 9 brazenly overrules and goes beyond the date of 17 June
1995 and postulates that in future a review of the cases is forbidden.
B Violation of the separation of powers
41. Separation of powers postulates a constitutional division between legislative and
judicial functions. In this context, the submission is:
(a) The legislative power is distinct from the judicial power;
(b) The legislature cannot lawfully usurp judicial power by sitting in appeal
over any judicial decision by attempting to overturn it;
(c) Any statute which seeks to overturn a judicial decision must be within the
legislative competence of the legislature under the Seventh Schedule to the
Constitution;
(d) Any such statute must change the basis of the law;
(e) The decision of a court will always be binding unless the law or conditions
underlying the legislation which was held to be invalid are so fundamentally
altered so that a different result would enure;
(f) While a legislation may be retroactive, an interim or final direction must be
obeyed especially when rights are conferred;

(g) A new legislation can be challenged on the basis that it violates the
fundamental rights; and
(h) Unless the basis of a legislation which is found to be ultra vires has been
altered, the mere enactment of a new legislation would constitute a brazen
overruling of the law, which is impermissible.
4 2 . Dr Dhavan urges that Reservation Act 2018 will not pass muster, when it is
assessed in the context of the principles enunciated by the decisions of this Court in (i)
Prithvi Cotton Mills Ltd., (ii) Madan Mohan Pathak, (iii) S.R. Bhagwat v. State of Mysore
MANU/SC/0047/1996 : (1995) 6 SCC 16, (iv) Bakhtawar Trust v. M.D. Narayan
MANU/SC/0390/2003 : (2003) 5 SCC 298, (v) Delhi Cloth & General Mills Co. Ltd. v.
State of Rajasthan MANU/SC/0761/1996 : (1996) 2 SCC 449, (vi) Re Cauvery
MANU/SC/0097/1992 : (1993) Supp (1) SCC 96, (vii) S.T. Sadiq v. State of Kerala
MANU/SC/0101/2015 : (2015) 4 SCC 400 and (viii) Medical Council of India v. State of
Kerala MANU/SC/1001/2018 : (2018) 11 SCALE 141.
43. Explaining the applicability of the above principles on facts, Dr Dhavan urged that
after the decision of this Court in B.K. Pavitra I, the State Government filed applications
for extension of time on 9 May 2017 and 8 September 201740. This Court extended time
to revise the seniority lists till 30 November 2017 and for consequential actions by 15
January 2018. On 15 January 2018, the State Government moved before this Court
seeking extension of time for implementing the decision in B.K. Pavitra I. On 29 January
2018, this Court finally granted time until 15 March 2018. On 17 March 2018, the State
moved before this Court for extension of time and on 20 March 2018, while disposing of
certain contempt petitions and other applications, one month's time was granted to take
consequential action. On 25 April 2018, this Court directed the State to file a further
affidavit (by 1 May 2018) indicating that promotions and demotions have been duly
effected. On 9 May 2018, this Court directed the State to file an affidavit to the effect
that the judgment in B.K. Pavitra I had been fully complied with and the hearing was
posted for 4 July 2018. On 28 June 2018, the State of Karnataka informed this Court
that the "further process have been stalled because of the enactment of the new
legislation and its publication in the Gazette on 23 June 2018". On 7 August 2018, the
State of Karnataka filed an interim application seeking permission of this Court to
implement the Reservation Act 2018. It has been urged that contrary to what was stated
by the state Government, there was no compliance of the decision in B.K. Pavitra I. In
this background, it has been submitted that the state has undertaken an exercise to
overrule B.K. Pavitra I which constitutes a clear usurpation of judicial power.
C Lack of compliance with Nagaraj and Jarnail
44. Dr Dhavan assails the report of the Ratna Prabha Committee on the ground that is
was not in compliance with Nagaraj and Jarnail. Nagaraj postulates that:
(i) The backlog should not extend beyond three years;
(ii) Excessive reservation would invalidate the exercise of power; and
(iii) There is a theory of guided power under which a failure to follow the above
conditionalities would result in reverse discrimination.
45. According to the submission, the decision in Nagaraj:
(a) Deploys the methodology that the seventy-seventh, eighty-first, eighty-

second and eighty-sixth amendments were only enabling and were valid. The
conditionalities for a valid exercise of the enabling power are two-fold:
(i) The existence of compelling reasons namely, backwardness,
inadequacy of representation and overall administrative efficiency
requiring quantifiable data; and
(ii) Excessiveness, which postulates that the ceiling limit of fifty per
cent is not transgressed, the creamy layer is not obliterated and
reservation is not extended indefinitely.
(b) The methodology of Nagaraj was approved both in I.R. Coelho v. State of
TN MANU/SC/0595/2007 : (2007) 2 SCC 1 and Jarnail; and
(c) The decision in Jarnail, while upholding the methodology adopted in
Nagaraj held that there is a constitutional presumption which obviates the need
for quantifiable data on the backwardness of SCs and STs and hence that part
of Nagaraj was held to be contrary to the decision in Indra Sawhney. The
application of the creamy layer test was held to be a requirement for SCs and
STs and other principles or applications enunciated in Nagaraj were held to be
valid.
46. In this background, the Ratna Prabha Committee report is assailed on the following
grounds:
(i) The chapter on backwardness is not necessary;
(ii) Inadequacy of representation is examined over 30 pages;
(iii) The data collected is over 32 years in thirty one government departments;
(iv) No data exists in 1986;
(v) The data indicates that STs are adequately represented from 1999 to 2015
but the average of 31 years is 2.70;
(vi) No data has been collected from public sector undertakings, boards,
corporations, local bodies, grant-in-aid institutions, among others, and it is
assumed that the data is representative in nature;
(vii) The representation in Public Works Department ("PWD") and Karnataka
Power Transport Corporation Limited ("KPTCL") is adequate;
(viii) The data collected is with respect to the availability of vacancies and not
posts, contrary to the requirements laid out in Sabharwal's case;
(ix) The data is on sanctioned posts and not posts which have been filled;
(x) The data is not cadre based but based on grades A, B, C and D even though
Jarnail requires the data to be on the basis of cadre;
(xi) The report erroneously assumed that grades A, B, C and D correspond to
cadres;
(xii) The report candidly admits that "in some departments, corporations like

PWD and KPTCL there may be over representation of the percentage mandated";
(xiii) On administrative efficiency:
(a) The data is based on general considerations such as economic
development;
(b) The efficiencies adverted to in matters of administrative, policy and
service are general; and
(c) Reliance which has been placed is on performance reports.
(xiv) The state has followed a strange method of back door entry by filling up
vacancies not by selection but through toppers from universities in various
departments for gazetted grade A and B posts.
D Reservation of the Bill to the President
47. Dr Dhavan urged that from the counter affidavit filed by the State Government, it is
evident that:
(i) The view of the State government was that given the legislative competence
of the state legislature, the "Bill was not required to be reserved" for the assent
of the President;
(ii) On 6 December 2017, the Governor of Karnataka considered it appropriate
to refer the Bill to the President in view of the decision in B.K. Pavitra I and the
"importance of the issue and the constitutional interpretation involved in the
matter" Under Article 200;
(iv) The State government on the Bill being forwarded to the President
continued to maintain that the Bill neither attracted the second proviso to
Article 200 nor did it deal with a matter which was repugnant to a Union law on
an entry falling in List III of the Seventh Schedule. Hence, the State
government opined that there did not appear to be any situation warranting the
reservation of the Bill for the consideration of the President. Hence, it has been
urged that it may be:
(a) The reference by the Governor on 6 December 2017 to the
President simply stated that since a constitutional interpretation was
required, the Bill was reserved for the President; however no specific
issues were referred; and
(b) The State government forwarded the Bill to the President, recording
at the same time that there was no reason to refer.
(v) The Union Government invited reasons for the reference to which responses
were made by the State Government in its clarification;
(vi) The Governor was altogether by-passed in this process; and
(vii) The Governor has the exclusive authority Under Article 200 on the
reference and must formulate a specific reference, which was not done. The
Central Government, it was urged, cannot create a reference which has not
been made by the state.

48. In order to buttress his submissions, Dr Dhavan relied upon the decisions in Kaiser-
I-Hind Pvt. Ltd. v. National Textile Corporation Ltd. MANU/SC/0834/2002 : (2002) 8
SCC 182, Gram Panchayat of Village Jamalpur v. Malwinder Singh MANU/SC/0275/1985
: (1985) 3 SCC 661 ("Gram Panchayat of Village Jamalpur"), Hoechst Pharmaceuticals
Ltd. v. State of Bihar MANU/SC/0392/1983 : (1983) 4 SCC 45 ("Hoechst
Pharmaceuticals Ltd") and Nabam Rebia and Bamang Felix v. Deputy Speaker Arunachal
Pradesh Legislative Assembly MANU/SC/0768/2016 : (2016) 8 SSC 1 ("Nabam Rebia").
Dr. Dhavan urged that:
(i) There was no valid reference by the Governor in the absence of specificity
on the matter of reference;
(ii) The State government consistently indicated that there was no reason to
refer the Bill to the President;
(iii) The Union Government could not have created a reference where none
existed; and
(iv) The reference was unconstitutional and the assent of the Governor was not
obtained.
E Seniority including consequential seniority
49. The submissions of Dr Dhavan are:
(i) Seniority is determined by the Seniority Rules 1957;
(ii) The decision in Badappanavar held that there was no specific Rule providing
for consequential seniority in the Seniority Rules 1957;
(iii) The amendments in the Seniority Rules 1957 on 18 August 2006 did not
effect any change to unsettle the decision in Badappanavar;
(iv) The Reservation Act 2002 attempted to overrule Badappanavar and was
eventually invalidated in B.K. Pavitra I;
(v) The Reservation Act 2018 mentions consequential seniority in its title yet
Section 5 makes no reference of it and in fact reinforces the Seniority Rules
1957 by implication. The reference to the Rules in Section 5 can only be in the
context of the Seniority Rules 1957 as amended. The Seniority Rules 1957 will
override the administrative orders of 27 April 1978;
(vi) The Government Order dated 27 April 1978 specifically adverts to Rules 4
or 4-A (as the case may be) of the Seniority Rules 1957;
(vii) No seniority can be conveyed by filling up of backlog and creating excess
or supernumerary posts; and
(viii) The proviso to Section 5 would be liable to be struck down for its
excessiveness.
50. In substance, Dr. Dhavan's are as follows:
(i) Every administrative action or legislation has to be Nagaraj compliant as

explained in Jarnail;
(ii) After the decision in B.K. Pavitra I, the State of Karnataka hurriedly enacted
the Reservation Act 2018 without demonstrating any compelling necessity;
(iii) The Governor of Karnataka reserved the Bill for the President without
delineating the exact reasons for doing so. Even while forwarding the Bill, the
State government maintained that there was no reason to make a reference to
the President. The queries exchanged subsequently would not constitute a valid
reference;
(iv) The Ratna Prabha Committee report is flawed and does not establish
inadequacy of representation and impact on administrative efficiency;
(v) The Reservation Act 2018 is similar to the Reservation Act 2002 except for
(i) Section 5 while mandates reservations; and (ii) Section 9 which overrules
all decisions of the past and pre-empts challenges in the future;
(vi) The Seniority Rules 1957 continue not to cover consequential seniority and
by the repeal of the Reservation Act 2002, the decision in Badappanavar
continues to be good law;
(vii) The uncontrolled backlog is not valid;
(viii) A proper exercise must be post and not vacancy based, it must be based
on cadres and not on groups A to D;
(ix) The counter affidavit of the State admits the flaws of the process denying
curative effect to the exercise; and
(x) The Reservation Act 2018 has failed to pass muster and its non-compliant
with the decisions in Nagaraj and Jarnail.
51. Mr. Shekhar Naphade, learned Senior Counsel submitted that:
(i) The decision in B.K. Pavitra I has attained finality and a subsequent change
in law cannot abrogate the principle of res judicata;
(ii) As held in the decision of this Court in Pandit M.S.M. Sharma v. Dr. Krishna
Sinha MANU/SC/0020/1960 : AIR 1960 SC 1186, whether an earlier judgment
is right or wrong is not material to the applicability of the doctrine of res
judicata;
(iii) The subsequent decision in Jarnail is not a ground for review and, in any
event, a review of B.K. Pavitra I by the state will not lie;
(iv) In view of the explanation to Order XLVII of the Code of Civil Procedure, a
reversal on a question of law in a subsequent decision of a superior court is not
a ground for review;
(v) An error of law is no ground for review (State of West Bengal v. Kamal
Sengupta MANU/SC/3011/2008 : (2008) 8 SCC 612);
(vi) The Reservation Act 2018 is based on a report which furnishes factual data:
this could have been furnished in the earlier round. The legislature has taken

recourse to exercise of judicial power;
(vii) The provisions of the Reservation Act 2018 are virtually the same as those
of the Reservation Act 2002;
(viii) The basis of legislative intervention was the collection of data: the
attempt is to place fresh material before the Court to review its decision in B.K.
Pavitra I. There is no change in law;
(ix) Retrospectivity of the Reservation Act 2018 from 1978 is arbitrary;
(x) There is no change in the basis of the law. The basis is a change in the
factual matrix which is not available as a ground for review;
(xi) The Ratna Prabha Committee report has collected no substantive material
on the impact of reservation in promotion on the efficiency of administration;
(xii) The second proviso to Article 200 and Article 254 (2) of the Constitution
are exhaustive of the constitutional power of the Governor to reserve a Bill for
the assent of the President;
(xiii) The Ratna Prabha Committee report does not deal with the aspect of
creamy layer which had been duly considered in Jarnail;
(xiv) The Ratna Prabha Committee dwelt on groups and not on cadres. The data
includes direct recruits as well as promotees, whereas the present case is only
about promotion; and
(xv) Data was collected only from thirty one government departments and not
from public sector undertakings.
52. Supplementing the submissions of Dr Dhavan, Mr. Puneet Jain, learned Counsel
appearing on the behalf of the Petitioners has adverted to the following issues which
arise for the consideration of this Court:
(i) Section 3 of the Reservation Act 2018 only seeks to extend consequential
seniority retrospectively to vacancy based roster point promotees and is not
concerned with the state exercising its enabling power to provide for
reservation in promotions. The Government Order6 dated 27 April 1978 by
which reservation for persons belonging to SCs and STs in specified categories
of promotional posts was introduced cannot be "justified" by a satisfaction on
the basis of the Ratna Prabha Committee report;
(ii) Article 16 (4A) confers a discretion upon the state to provide for
reservations in promotion with or without consequential seniority. Nagaraj
mandates that there have to exist compelling reasons and the satisfaction of the
state before exercise of its powers Under Article 16 (4A). In view of the
decision in Panneer Selvam, automatic conferment of consequential seniority
can no longer be sustained; and
(iii) The fact that the eighty-fifth amendment has been made retrospective from
17 June 1995 cannot enable the state to make a provision for the first time by
exercising powers retrospectively and consequently taking away vested rights
which legitimately accrued upon the general category employees.

C.2 Submissions for the Respondents and intervenors
53. Appearing for the State of Karnataka, Mr. Basava Prabhu S. Patil, learned Senior
Counsel submitted thus:
A The basis of B.K. Pavitra I has been altered
(i) The Reservation Act 2018 has taken away the basis of the judgment
in B.K. Pavitra I and the protection of seniority with retrospective effect
which is permissible in law:
(a) The Reservation Act 2018 does not seek to overrule or
nullify simpliciter the decision in B.K. Pavitra I. The law was
enacted to provide consequential seniority for roster point
promotees after collecting data showing the existence of the
compelling reasons of: (i) backwardness; (ii) inadequacy of
representation; and (iii) overall efficiency. Hence, the
Reservation Act 2018 removes the basis of the decision in B.K.
Pavitra I;
(b) The state legislature is competent to enact a law with
retrospective or retroactive operation. The legislative
competence of the State Legislature to enact law is traceable to
Article 16 (4A). Merely because the legislation confers seniority
with effect from 1978, will not lead to its invalidation (Cheviti
Venkanna Yadav v. State of Telangana MANU/SC/1351/2016 :
(2017) 1 SCC 283 ("Cheviti Venkanna Yadav"), Utkal
Contractors & Joinery (P) Ltd. v. State of Orissa
MANU/SC/0125/1987 : (1987) Supp. SCC 751 ("Utkal
Contractors and Joinery (P) Ltd") and State of Himachal
Pradesh v. Narain Singh MANU/SC/1129/2009 : (2009) 13 SCC
165 ("Narain Singh");
(c) Sections 3 and 4 of the Reservation Act 2018 came into
operation on 17 June 1995, on which date the seventy-seventh
and eighty-fifth amendments to the Constitution came into
effect, thereby enabling reservations to be made in promotion
together with consequential seniority. The Reservation Act
2018 protects consequential seniority accorded from 27 April
1978 (the date of the reservation order) in light of the data
collected which shows the inadequacy of representation;
(d) In terms of the decision in Virpal Singh, the catch-up Rule
was to be applied with effect from 10 February 1995 (i.e. the
date of the judgment in Sabharwal). According to the decision
in Ajit Singh II, promotions granted prior to 1 March 1996
without following the catch-up Rule are protected.
Badappanavar protects the promotions of reserved candidates
based on consequential seniority which took place before 1
March 1996;
(e) While judicial review allows courts to declare a statute as
unconstitutional if it transgresses constitutional limits, courts
are precluded from inquiring into the propriety or wisdom

underlying the exercise of the legislative power. The motives of
the legislature in enacting a law are incapable of being
judicially evaluated; and
(f) Seniority is not a vested or an accrued right and hence it is
open for the legislature to enact a law for dealing with it.
(ii) The Reservation Act 2018 is not of the same genre of legislation
dealt with in the decision of Madan Mohan Pathak:
(a) Madan Mohan Pathak involved a challenge by the
employees of the Life Insurance Corporation to the
constitutional validity of a Parliamentary law which attempted
to render ineffective a settlement with employees for the
payment of bonus. The judgment does not deal with a case
where the basis of the invalidity of a legislation noticed in a
judicial decision is taken away by a subsequent law; and
(b) Madan Mohan Pathak in fact, notices that in the case of a
declaratory judgment holding an action to be invalid, validating
legislation to remove the defect is permissible.
(iii) The collection of data by the State must demonstrate the presence
of compelling reasons namely, (a) inadequacy of representation; (b)
backwardness; and (c) overall administrative efficiency as enunciated
in Nagaraj and B.K. Pavitra I;
(iv) The decision in Indra Sawhney holds that the question as to
whether a backward class of citizens is not adequately represented in
the services under the state is a matter of subjective satisfaction;
(v) Nagaraj also notices the position that there is a presumption that
the state is in the best position to define and measure merit and that
there is no fixed yardstick to identify and measure the three factors on
which quantifiable data has to be collected;
(vi) The decision in Jarnail also holds that the test of determining the
adequacy of representation in promotional posts is left wisely to the
states; and
(vii) The Reservation Act 2018 was enacted after the State was satisfied
about the existence of the three compelling reasons.
B The Ratna Prabha Committee has dealt with all the three facets constituting
the 'compelling reasons':
1. Backwardness
(i) The decision in Jarnail has clarified that there is no
requirement of collecting quantifiable data on the
backwardness of SCs and STs. The observation in Nagaraj is
contrary to the larger Bench decision in Indra Sawhney.
(ii) Yet, in any event, the Ratna Prabha Committee considered
the backwardness of SCs and STs in view of the dictum in

Nagaraj which then held the field. The Committee after carrying
out the exercise came to the conclusion that the requirement of
backwardness is satisfied.
2. Inadequacy of representation
(i) Chapter II of the Ratna Prabha Committee report considered
the inadequacy of representation and records a summary of its
conclusions in paragraphs 2.5 and 2.6;
(ii) It is misleading to assert that the State did not collect
cadre wise data. Para 2.4.1 indicates that the government took
into account the data for groups A, B, C and D to draw a
conclusion about the inadequacy of representation;
(iii) The decisions in Indra Sawhney and Sabharwal are clear in
postulating that persons belonging to the SCs and STs who are
appointed against general category posts/vacancies are not to
be reckoned for ascertaining over representation; and
(iv) It is a matter of common experience that for most of the
group D posts such as municipal sweepers, only persons
belonging to SCs and STs apply. Over representation in group
D posts which results from general category candidates
keeping away from them is no ground to deny promotion to
group D employees recruited against the reserved category.
3. Administrative efficiency
(i) Para 3.12 of Chapter III of the Ratna Prabha Committee
report has considered all relevant aspects before coming to the
conclusion that reservations in promotion do not affect
administrative efficiency;
(ii) Promotions are made on the basis of seniority-cum-merit.
[Rule 19(3)(a) of the Rules 1977] Only those candidates who
fulfil the criteria of merit/suitability are promoted based on
seniority. Since this criterion is applicable even in respect of
roster promotions, the efficiency of administration is not
adversely impacted; and
(iii) On promotion, a candidate is required to serve a statutory
period of officiation before being confirmed in service. This
applies to all candidates including roster point promotees and
ensures that the efficiency of administration is not adversely
affected.
C The challenge on the ground that the Reservation Act 2018 does not exclude
the benefit of consequential seniority in respect of the creamy layer in terms of
the decision in Jarnail is baseless:
(i) Creamy layer as a concept can be applied only at the entry level or
at appointment and has no application while granting reservations in
promotion and allowing for consequential seniority. The Reservation

Act 2018 provides only for consequential seniority and the extent of
reservation granted to SCs and STs at the entry level/in appointment is
not under challenge;
(ii) Even assuming that the concept of creamy layer can be applied at
the stage of promotion, it is inapplicable to the conferment of
consequential seniority. Consequential seniority is not an additional
benefit but a consequence of promotion;
(iii) Appointment to a post or progression in career based on promotion
cannot be treated as acquisition of creamy layer status. In fact, the
decision in Jarnail makes it clear that the concept of creamy layer
applies only to the entry stage;
(iv) Nagaraj does not hold that the exclusion of the creamy layer is a
precondition for the exercise of the enabling power Under Article 16
(4A) for providing promotion or consequential seniority;
(v) In the decision in B.K. Pavitra I, the challenge to the Reservation
Act 2002 was accepted on the ground that the State had not carried out
an exercise for determining inadequacy of representation,
backwardness and overall efficiency of administration. B.K. Pavitra I did
not accept the plea of the applicability of creamy lawyer principle to
consequential seniority; and
(vi) Under the Reservation Order 1978, reservations in promotion are
restricted up to the lowest category of class I post.
D There is no basis in the challenge that the Reservation Act 2018 does not
meet the proportionality test and results in over representation.
(i) In view of the Reservation Order 1999 providing that reservation in
promotion in favour of SCs and STs shall continue only till their
representation reaches 15 per cent and 3 per cent respectively, it is
ensured that there is no over representation; and
(ii) Since the Reservation Act 2018 provides only for consequential
seniority and not for reservation in appointment or promotion, it cannot
be asserted that reservation for the purpose of seniority is vacancy-
based and not post-based, contrary to the decision in Sabharwal.
Reservations in promotion are provided by the Government Order 1978
which provides for roster point promotion and not roster point
seniority. The Government Order dated 13 April 1999 provides for
making promotions (after the existing backlog is filled) in favour of SCs
and STs by maintaining their representation to the extent of 15 per cent
and 3 per cent of the total working strength (and not vacancies).
E There was no constitutional infirmity in the Governor of Karnataka having
reserved the Reservation Act 2018 for the consideration of the President.
The Governor in reserving the Bill for consideration of the President acted in
pursuance of the provisions of Article 200 of the Constitution. The Governor
may Under Article 200 (i) declare assent to a Bill; or (ii) declare the
withholding of assent; or (iii) reserve a Bill for consideration of the President.

The power of the Governor to reserve a Bill for consideration of the President is
not subject to the existence of a repugnancy Under Article 254 (2). The action
of the Governor is non-justiciable. (Hoechst Pharmaceuticals Ltd.)
F The assent of the Governor is not contemplated once the President has given
assent to a Bill.
Neither Article 200 nor Article 201 contemplates that the Bill should be
presented again before the Governor after it has been assented to by the
President. Section 5(1)(iv) of the Karnataka General Clauses Act 1899
postulates that an Act passed by the Karnataka legislature shall come into
operation on the day on which the assent of the Governor or, as the case may
be, of the President is granted and is first published in the Official Gazette.
Hence, once the assent of the President is granted, the necessity of a further
assent by the Governor is obviated.
G The submission that in Karnataka Power Transport Corporation Limited, as a
consequence of the reservation in seniority in the cadre of Superintending
Engineer and Engineer-in-Chief, there was over representation for SCs and ST
between 2005 and 2016 is erroneous.
(i) There is no reservation for promotion to the posts of Superintending
Engineer and Engineer-in-Chief in KPTCL. Reservation in promotion and
consequential seniority is available only up to the post of Assistant
Executive Engineer. In fact, if consequential seniority were not to be
granted on promotion up to the post of Assistant Executive Engineer,
there would be excessive under-representation of reserved category
candidates. The Ratna Prabha Committee report, in paragraph 2.4, took
note of the total number of officials/employees working in thirty one
government departments of the State Government. It noted that 80.35
per cent of the sanctioned posts are concentrated in six major
Government departments namely; Education, Home, Health, Revenue,
Judicial and Finance. The data pertaining to thirty one government
departments was taken in the totality to analyse and assess the
adequacy of representation. The data of smaller departments may not
be representative of the State Civil Services as a whole.
On the above grounds, it was urged that the challenge to the Reservation Act 2018 must
fail.
54. Ms. Indira Jaising41, learned Senior Counsel appearing on behalf of the intervenors
(Karnataka SC/ST Engineer's Welfare Association) contended that the Reservation Act
2018 is constitutionally valid. Ms. Jaising urged the following submissions:
(i) The decisions of this Court in State of Kerala v. N.M. Thomas
MANU/SC/0479/1975 : (1976) 2 SCC 310 ("N M Thomas") and Nagaraj affirmed
that Article 16 (4) is an emphatic declaration of Article 16 (1). The principle of
'proportional equality' entails substantive equality which is reflected in
affirmative action to remedy injustice to SCs, STs and Other Backward
Classes42. Social justice is concerned with the distribution of benefits and
burdens. The Reservation Act 2018, in providing for consequential seniority,
furthers the vision of substantive equality and is valid;

(ii) Affirmative action Under Article 15 (4) and reservation Under Article 16 (4)
of the Constitution are intended to ensure that all Sections of the society are
represented equally in services under the state. The Reservation Act 2018
underlies this salient objective and furthers the promotion of the interests of
the SCs, STs and other weaker Sections as stipulated in Article 46 of the
Constitution;
(iii) Article 16 (4A) is an enabling provision which empowers the State to frame
Rules or enact a legislation granting reservations in promotions with
consequential seniority subject to the fulfilment of the conditions laid down in
Nagaraj and modified by Jarnail. Following the decision in Jarnail, the state is
required to show data only on the inadequacy of representation and efficiency
of administration. The State of Karnataka, in exercise of the enabling power
Under Article 16 (4A) enacted the Reservation Act 2018 in compliance with the
conditions precedent to the exercise of the power stipulated in that Article;
(iv) The decision in Sabharwal lays down that in determining the inadequacy of
representation of SCs and STs in promotional posts, the state may take the total
population of a particular class and its representation in the service. The State
has studied the extent of reservation in posts for SCs and STs in a 'group'
which is a collection of cadres. Hence, it cannot be said that the state failed to
collect quantifiable data on the representation of SCs and STs in promotional
posts. Without the grant of consequential seniority, the percentage of
reservation will not reach the prescribed percentage;
(v) No statistical studies have been provided to show that the grant of
consequential seniority has led to the lowering of efficiency in administration. It
cannot be presumed that the appointment of SCs and STs will lead to a
lowering of efficiency as at the individual level, all individuals belonging to SCs
and STs must also achieve the minimum benchmark of 'good';
(vi) The Reservation Act 2002 was struck down on the basis of the failure of the
state to collect quantifiable data. The Reservation Act 2018 has been enacted on
the basis of data collected and studied in the Ratna Prabha Committee report.
Hence, the basis of the decision in B.K. Pavitra I has been removed.
Additionally, no mandamus was issued in B.K. Pavitra I;
(vii) The collection of data required to be carried out by the State is a matter of
social science and is carried out by experts. Data collection is both qualitative
and quantitative. As long as the methodology adopted by the state is
scientifically sound, the assessment of the data collected is the prerogative of
the state. The court may intervene in judicial review only when there is a
complete absence of data or if the data relied on is irrelevant; and (viii) The
principles laid down by this Court in Indra Sawhney on the exclusion of the
creamy layer apply only to OBCs and cannot extend to SCs and STs. No
question arose in Nagaraj on the exclusion of the creamy layer in respect of SCs
and STs. Hence, the decision is not an authority for the principle that the states
are bound to exclude the creamy layer in respect of SCs and STs. The decision
of this Court in Jarnail dealt with the competence of Parliament to enact a law
in relation to the creamy layer and did not lay down a general proposition on its
exclusion. The concept of creamy layer, if applicable, can only be applied at the
entry level and not in promotions.

55. Mr. Dinesh Dwivedi 43, learned Senior Counsel appearing on behalf of the intervenor
(Karnataka SC/ST Engineers' Welfare Association), urged the following submissions:
(i) The decision in Nagaraj was concerned with whether reservation in
promotion as inserted in Article 16 (4A) by the Constitution (Seventy-seventh
Amendment) Act 1995 and the enabling provision for the grant of consequential
seniority Under Article 16 (4A) inserted by the Constitution (Eighty-fifth
Amendment) Act 2001 violated the basic structure of the Constitution. The
decision in Nagaraj was concerned with reservations in promotion and did not
equate reservation in promotion with the grant of consequential seniority. In
this view, the four controlling factors, namely (i) backwardness; (ii) adequacy
of representation; (iii) elimination of the creamy layer; and (iv) efficiency of
administration have relevance only to the exercise of the enabling power Under
Article 16 (4A) for making reservation in promotion and not the exercise of the
enabling power to grant consequential seniority;
(ii) Reservation in promotion was introduced in the State of Karnataka by the
Government Order dated 27 April 1978 and continues to be in operation. The
Reservation Act 2018 stipulates the grant of consequential seniority which is
premised on the prior existence and operation of reservation in promotion.
Absent a challenge to the Government Order dated 27 April 1978 in the present
proceedings, the Petitioner is precluded from challenging the grant of
consequential seniority in the Reservation Act 2018;
(iii) Consequential seniority is nothing but the normal Rule of seniority which
accords seniority to roster point promotees from the date of their substantive
promotion. The catch-up Rule is an exception to the normal Rule of seniority.
Prior to the decision in Indra Sawhney, accelerated seniority to roster point
promotees existed in the State of Karnataka with the application of the
continuous officiation rule. This is supported by Rule 2(b) of the 1957 Rules.
Para III (d) of the Government Order dated 27 April 1978 provided for the
application of the catch-up Rule only in a limited manner. Rule 4 is restricted in
its application to appointments made on the same day which implies that in the
absence of its application to a given case, consequential seniority must be
granted;
(iv) The decision in Virpal Singh concerned a Rule that specifically provided for
the application of the catch-up Rule in a departure from the normal Rule of
seniority. This Court held that a state may prescribe either consequential
seniority based on continuous officiation or the catch-up Rule of seniority in
case of roster point promotions. A harmonious reading of Articles 14 and 16(1)
of the Constitution does not stipulate that the catch-up Rule must apply in the
case of roster point promotions. Thus, a balancing of Articles 14, 16(1) and
16(4) of the Constitution denotes that the catch-up Rule is not mandatory. The
decisions of this Court in Ajit Singh I, Ajit Singh II and Badappanavar, in
holding to the contrary, have been expressly overruled by the seventy-seventh
and the eighty-fifth amendments to the Constitution, following which the
principles enunciated in Virpal Singh continue to govern the field. The eighty-
fifth amendment was intended to make consequential seniority a constitutional
principle and revive consequential seniority as the normal Rule of seniority;
(v) The principles enunciated in Virpal Singh are fortified by the decision in
Nagaraj which held that the catch-up Rule and consequential seniority are

principles of service jurisprudence and cannot be elevated to a constitutional
status. The discretion to choose between consequential seniority and catch-up
vests with the state. The Reservation Act 2018, in stipulating for consequential
seniority, is a valid exercise of discretion by the State; and
(vi) In the alternative, the tests laid down by the four controlling factors in
Nagaraj and Jarnail have been satisfied prior to the enactment of the
Reservation Act 2018. The satisfaction of the state in this regard cannot be
subjected to review by this Court.
56. Mr. Lakshminarayana, learned Senior Counsel has submitted thus:
(i) The issue as to whether reservation Under Article 16 (4A) can be provided
by an executive order was answered in the affirmative in the judgment of
Justice BP Jeevan Ready speaking for a plurality of judges in Indra Sawhney.
The word 'provision' in Article 16 (4) was interpreted in contrast with the word
'law' in Clauses (3) and (5) of Article 16. The word 'any' and the word
'provision' in Article 16 (4) must be given their due meaning. Article 16 (4) is
exhaustive as a special provision in favour of the backward class of citizens.
Backward classes having been classified by the Constitution as a class
deserving special treatment and the Constitution itself having specified the
nature of the special treatment, it should be presumed that no further
classification or special treatment is permissible in their favour outside Article
16 (4). In light of the decision in Indra Sawhney, it is now a settled principle
that a provision for reservation can be made by the legislature, by statutory
Rules and by executive orders;
(ii) Provisions for reservation in promotions were introduced in Karnataka by
the Government Order dated 27 April 1978 on the basis of the inadequacy of
representation of SCs and STs in public services Under Article 16 (4). After the
report on the inadequacy of representation dated 30 August 1979, first and
second roster points were reserved for SCs and STs. The principle of
consequential seniority is adopted by Clause (vii) of the Government Order
dated 27 April 1978 and Clause (d) of the Government Order dated 1 June
1978;
(iii) Clause (vii) of the Government Order dated 27 April 1978 as it originally
stood provided that inter se seniority amongst persons promoted "on any
occasion" shall be determined Under Rules 4 and 4 (A) of the Seniority Rules
1957;
(iv) The words "on any occasion" in Clause (vii) were amended by Clause (d) of
the Government Order dated 1 June 1978 so that the determination of seniority
among reserved promotees and general candidates on the basis of seniority-
cum-merit shall "on each occasion" be fixed Under Rule 4 of the Seniority Rules
1957;
(v) The substitution of the expression "on any occasion" with the expression
"on each occasion" denotes the intention of the government to provide
consequential seniority to reserved category candidates promoted on the basis
of roster;
(vi) The legislature enacted provisions pertaining to the policy of reservation in
promotion in the State Civil Services and Public Sector Undertakings as follows:

(a) The Rules 1977 including the proviso to Rule 8, upheld by this
Court in Bhakta Ramegowda;
(b) The Karnataka Scheduled Castes, Scheduled Tribes and Other
Backward Classes (Reservation of Appointment etc.,) Act 1990;
(c) The Karnataka Scheduled Castes, Scheduled Tribes and Other
Backward Classes (Reservation of Appointment etc.,) Rules 1992; and
(d) The Karnataka State Civil Services (Unfilled Vacancies Reserved for
the persons belonging to the Scheduled Castes and the Scheduled
Tribes) (Special Recruitment) Rules 2001.
The above provisions were followed by the Reservation Acts of 2002 and 2017.
(vii) With effect from 1 April 1992, the State of Karnataka inserted the proviso
to Rule 8 in the Rules 1977 which reads as follows:
8. Provision for reservation of appointments or posts.-
Appointments or posts shall be reserved for the members of the
Scheduled Castes, Scheduled Tribes, and Other Backward Classes to
such extent and in such manner as may be specified by the government
under Clause (4) of Article 16 of the Constitution of India.
Proviso to Rule 8
44 [Provided that, notwithstanding anything in the Rules of Recruitment
specially made in respect of any Service or Post, the backlog vacancies
in the promotional quota shall be determined and implemented with
effect from 27th April, 1978.
Note.-The backlog vacancy means the extent of the number of
vacancies available under the roster system up to the level of lowest
category in Group-A post calculated from 27th April, 1978.].
The above Rule was upheld in Bhakta Ramegowda;
(viii) The Government Order dated 24 June 1997 provided additional roster
points to cover up backlog promotional roster points, both in promotion and
direct recruitment. Clauses (iv) and (v) of para 8 of the Government Order
dated 24 June 1997 reads as follows:
Clause (IV).
After effecting review of promotion and adjustment and fitment as
indicated in item (iii) above, if some more persons belonging to
scheduled castes and scheduled tribes who have already been
promoted against backlog cannot get adjusted due to want of adequate
number of vacancies as per the aforesaid roster points, such persons
shall be adjusted and fitted in accordance with the procedure specified
in item (iii) while effecting promotion in respect of future vacancies.
Until such time, shall be continued against supernumerary posts to be
created by the concerned Administrative Department. For this purpose,
the Secretaries to Government are hereby delegated the power to

create supernumerary posts presuming the concurrence of Finance
Department and to that extent the Government Order No. FD 1 TFP 96,
dated 10.07.1996, shall be deemed to have been modified accordingly.
Clause (V)
While adjusting and fitting promote[e]s as indicated in item (iii) and
(iv) above, the inter-se seniority among the General category, the
scheduled caste category and the scheduled tribe category shall be
determined in accordance with Rule 4 or Rule 4 A as the case may be,
of the Karnataka Government Servants Seniority Rules 1957. The roster
points are meant only for calculating the number of vacancies that
become available for the different categories on each occasion and they
do not determine the seniority.
The above clauses reiterated the purpose of assessing inter se seniority after
promotion of roster promotees in reckoning consequential seniority among two
groups.
(ix) The State Government is entitled to prescribe the percentage of reservation
based on the total population of a particular backward class and its
representation in the services of the State Under Article 16 (4). Once the
prescribed percentage of reservations is determined, the numerical test of
adequacy is satisfied. The percentage of reservation is the desired
representation of the backward classes in the state services and is consistent
with the demographic estimate, based on the proportion worked out in relation
to their population;
(x) The operation of the roster points and filling of the cadre strength ensures
that the reservation remains within the limit of 50 per cent;
(xi) Reserved candidates who have been appointed or promoted on merit as
general candidates cannot be included in calculating adequacy of representation
of backward classes in operating the roster points. Only reserved candidates
promoted against roster points are to be taken into account in considering the
adequacy of representation;
(xii) A cadre includes different grades and reservation can be provided in
different grades within the cadre. The reservation policy contained in the
Government Order dated 27 April 1978 has been re-issued on 17 April 1993
and 11 May 1993 after the decision in Indra Sawhney;
(xiii) Both Clauses (1) and (4) of Article 16 operate in the same field. Both are
directed towards achieving equality of opportunity in services under the State.
The formation of opinion by the State on the adequacy of representation is a
matter of subjective satisfaction and the test is whether there was some
material before the State to justify its opinion. In the exercise of judicial
review, the court would extend due deference to the judgment and discretion of
the executive. Even if there are some errors on the part of the State
Government, that would not in any way result in the invalidation of the entire
exercise;
(xiv) Efficiency of administration means governance which provides responsive
service to the people. Merit alone is not a component of efficiency. Once an

employee is promoted, efficiency is judged on the basis of the annual
confidential reports;
(xv) A curative legislation does not constitute an encroachment on judicial
power by the State Legislature. Similarly, it is open to the legislature to enact a
legislation both with retrospective and prospective effect;
(xvi) Judicial review cannot extend to examine the adequacy of the material
available before the President and unless, there is a situation involving a fraud
on power or conduct actuated by oblique motive, the court would not intervene;
(xvii) The principle of creamy layer has no application to in-service candidates;
and
(xviii) The State having rectified the lacuna which was pointed out in B.K.
Pavitra I, by carrying out the exercise of data collection, the opinion formed by
the State after analysing the data lies in its subjective satisfaction. The
reservation policy dated 27 April 1978 which introduced provisions for
reservations in promotions for SCs and STs in public services has continued
until date without interruption.
57. Mr. Nidhesh Gupta, learned Senior Counsel urged the following submissions:
(i) The phrase 'in the opinion of the state' in Article 16(4) of the Constitution
indicates that the issue with regard to adequacy of representation is within the
subjective satisfaction of the state. The role of the court is limited to examining
whether the opinion formed by the government was on the basis of data
available with it. While the existence of circumstances requiring state action
may be reviewed, the opinion formed is outside the purview of judicial review.
These propositions have been accepted in the decisions of this Court in Indra
Sawhney, Barium Chemicals Ltd. v. Company Law Board MANU/SC/0037/1966 :
AIR 1967 SC 295 ("Barium Chemicals Ltd."), Rohtas Industries v. S.D. Agarwal
MANU/SC/0020/1968 : (1969) 1 SCC 325 and Rustom Cavasjee Cooper v.
Union of India MANU/SC/0011/1970 : (1970) 1 SCC 248;
(ii) The expression 'to any class or classes of posts' in Article 16(4) makes it
abundantly clear that the phrase refers to a 'class' or 'group' and not a cadre.
The use of the word 'services' in the phrase 'services under the state' in Article
16 (4A) supports this contention. The decisions in Sabharwal and Nagaraj
clarify that cadre strength is to be applied in the operation of the roster. The
reference to 'entire cadre strength' in Sabharwal adverted to the fact that the
entire cadre strength should be taken into account in determining whether
reservation up to the quota limit has been reached. In this view, 'entire cadre
strength' is the reference point to (i) ascertain the position of representation in
the entire service; (ii) determine whether reservation up to the quota limit has
been reached in the application of the roster; and (iii) the cadre strength has
been applied in the operation of the roster. It was urged that if the percentages
were calculated on the basis of vacancies, the actual appointments made may
exceed the prescribed quota. Reliance has been placed on the decisions of this
Court in Indra Sawhney, Nagaraj, and Jarnail;
(iii) The decision in Indra Sawhney does not deal with SCs and STs in regard to
the creamy layer principle. In any case, even if the principle applies to SCs and
STs, it would only be applicable at the stage of appointments and not for

promotional posts; and
(iv) The percentages in the PWD which are marginally above the stipulated
quota are by way of including those reserved category candidates who were
selected on general merit. This is contrary to the law laid down by this Court in
Sabharwal, Indra Sawhney and Ritesh Sah v. Y.L. Yamul MANU/SC/0363/1996 :
(1996) 3 SCC 253.
58. The rival submissions now fall for consideration.
5 9 . Other Counsel, who argued and submitted their written submissions, have with
certain nuances, reiterated similar arguments.
D Assent to the Bill
6 0 . Besides the Governor, the legislatures of the States consist of a bicameral
legislature for some States and a unicameral legislature for others.45
61. Article 200 is the provision which enunciates the power of the Governor to assent
to a Bill, withhold assent or reserve a Bill for considering of the President:
200. When a Bill has been passed by the Legislative Assembly of a State or, in
the case of a State having a Legislative Council, has been passed by both
Houses of the Legislature of the State, it shall be presented to the Governor and
the Governor shall declare either that he assents to the Bill or that he withholds
assent therefrom or that he reserves the Bill for the consideration of the
President:
Provided that the Governor may, as soon as possible after the
presentation to him of the Bill for assent, return the Bill if it is not a
Money Bill together with a message requesting that the House or
Houses will reconsider the Bill or any specified provisions thereof and,
in particular, will consider the desirability of introducing any such
amendments as he may recommend in his message and, when a Bill is
so returned, the House or Houses shall reconsider the Bill accordingly,
and if the Bill is passed again by the House or Houses with or without
amendment and presented to the Governor for assent, the Governor
shall not withhold assent therefrom:
Provided further that the Governor shall not assent to, but shall
reserve for the consideration of the President, any Bill which in
the opinion of the Governor would, if it became law, so
derogate from the powers of the High Court as to endanger the
position which that Court is by this Constitution designed to
fill.
Article 201 deals with what is to happen when the Governor reserves a Bill for the
consideration of the President.
2 0 1 . When a Bill is reserved by a Governor for the consideration of the
President, the President shall declare either that he assents to the Bill or that he
withholds assent therefrom:
Provided that, where the Bill is not a Money Bill, the President may

direct the Governor to return the Bill to the House or, as the case may
be, the Houses of the Legislature of the State together with such a
message as is mentioned in the first proviso to Article 200 and, when a
Bill is so returned, the House or Houses shall reconsider it accordingly
within a period of six months from the date of receipt of such message
and, if it is again passed by the House or Houses with or without
amendment, it shall be presented again to the President for his
consideration.
Upon a Bill being passed by the Houses of the legislature (or by the sole House where
there is only a legislative assembly), it has to be presented to the Governor. The
Governor can (i) assent to the Bill; (ii) withhold assent; or (iii) reserve the Bill for the
consideration of the President.
6 2 . Where a Bill is not a Money Bill, the Governor may return the Bill for
reconsideration upon which the House or Houses, as the case may be, will reconsider
the desirability of introducing the amendments which the Governor has recommended.
If the Bill is passed again by the House (or Houses as the case may be), the Governor
cannot thereafter withhold assent. The second proviso to Article 200 stipulates that the
Governor must not assent to a Bill but necessarily reserve it for the consideration of the
President if the Bill upon being enacted would derogate from the powers of the High
Court in a manner that endangers its position under the Constitution. Save and except
for Bills falling within the description contained in the second proviso (where the
Governor must reserve the Bill for consideration of the President), a discretion is
conferred upon the Governor to follow one of the courses of action enunciated in the
substantive part of Article 200. Aside from Bills which are covered by the second
proviso, where the Governor is obliged to reserve the Bill for the consideration of the
President, the substantive part of Article 200 does not indicate specifically, the
circumstances in which the Governor may reserve a Bill for the consideration of the
President. The Constitution has entrusted this discretion to the Governor. The nature
and scope of the discretionary power of the Governor to act independent of, or, contrary
to aid and advice of Council of Ministers Under Article 163 was discussed in Nabam
Rebia, Justice J.S. Khehar (as the learned Chief Justice then was) held thus:
154. We are, therefore, of the considered view that insofar as the exercise of
discretionary powers vested with the Governor is concerned, the same is limited
to situations, wherein a constitutional provision expressly so provides that the
Governor should act in his own discretion. Additionally, a Governor can
exercise his functions in his own discretion, in situations where an
interpretation of the constitutional provision concerned, could not be construed
otherwise....46
Justice Dipak Misra (as the learned judge then was), observed thus:
375....The Governor is expected to function in accordance with the provisions
of the Constitution (and the history behind the enactment of its provisions), the
law and the Rules regulating his functions. It is easy to forget that the Governor
is a constitutional or formal head--nevertheless like everybody else, he has to
play the game in accordance with the Rules of the game--whether it is in
relation to the Executive (aid and advice of the Council of Ministers) or the
Legislature (Rules of Procedure and Conduct of Business of the Arunachal
Pradesh Legislative Assembly). This is not to say that the Governor has no
powers--he does, but these too are delineated by the Constitution either

specifically or by necessary implication...47
63. The framers carefully eschewed defining the circumstances in which the Governor
may reserve a Bill for the consideration of the President. By its very nature the
conferment of the power cannot be confined to specific categories. Exigencies may arise
in the working of the Constitution which justify a recourse to the power of reserving a
Bill for the consideration of the President. They cannot be foreseen with the vision of a
soothsayer. The power having been conferred upon a constitutional functionary, it is
conditioned by the expectation that it would be exercised upon careful reflection and for
resolving legitimate concerns in regard to the validity of the legislation. The
entrustment of a constitutional discretion to the Governor is premised on the trust that
the exercise of authority would be governed by constitutional statesmanship. In a
federal structure, the conferment of this constitutional discretion is not intended to
thwart democratic federalism. The state legislatures represent the popular will of those
who elect their representatives. They are the collective embodiments of that will. The
act of reserving a Bill for the assent of the President must be undertaken upon careful
reflection, upon a doubt being entertained by the Governor about the constitutional
legitimacy of the Bill which has been passed.
6 4 . Dr Dhavan in the course of his submissions, has dwelt at length on the power
which is entrusted to the Governor to reserve a Bill for the consideration of the
President Under Article 254 (2). Article 254 (2) deals with a situation where a law which
has been enacted by the legislature of a state on a matter which is enumerated in the
Concurrent List of the Seventh Schedule contains any provision which is repugnant
either to an earlier law made by Parliament or an existing law with respect to that
matter. In such an eventuality, the law made by the legislature of the state can prevail
in that state only if it has received the assent of the President on being reserved for
consideration.
65. When the reservation of a Bill for the assent of the President has been occasioned
on the ground of a repugnancy with an existing law or a law enacted by the Parliament,
there are decisions of this Court which hold that the President has to be apprised of the
reason why the assent was sought. In Gram Panchayat of Village Jamalpur, a law
enacted by the Punjab legislature in 1953, extinguished all private interests in Shamlat-
deh lands and vested them in the village Panchayats as a matter of agrarian reform.
This Court held that the Punjab enactment had not been reserved for the assent of the
President on the ground that it was repugnant to an earlier Act enacted by Parliament in
1950 but the assent was sought for a different and a specific purpose. In this
background, the Constitution Bench held that the assent of the President would not avail
the state government to accord precedence to the law enacted by the state legislature
over the law made by Parliament. The Constitution Bench held:
12....The assent of the President Under Article 254(2) of the Constitution is not
a matter of idle formality. The President has, at least, to be apprised of the
reason why his assent is sought if, there is any special reason for doing so. If
the assent is sought and given in general terms so as to be effective for all
purposes, different considerations may legitimately arise. But if, as in the
instant case, the assent of the President is sought to the Law for a specific
purpose, the efficacy of the assent would be limited to that purpose and cannot
be extended beyond it.48
66. A similar principle was adopted in Kaiser-I-Hind Pvt. Ltd. The case concerned rent
legislation in Maharashtra and the Public Premises (Eviction of Unauthorized Occupants)

Act 1971 enacted by Parliament. This Court held that where the assent was given after
considering the repugnancy between the Bombay Rent Act, the Transfer of Property Act
and the Presidency Small Cause Courts Act, it was not correct to hold that the state law
would prevail over another parliamentary enactment for which no assent had been
sought. In that context, the Court held:
65.... 2. (a) Article 254(2) contemplates "reservation for consideration of the
President" and also "assent". Reservation for consideration is not an empty
formality. Pointed attention of the President is required to be drawn to the
repugnancy between the earlier law made by Parliament and the contemplated
State legislation and the reasons for having such law despite the enactment by
Parliament.
(b) The word "assent" used in Clause (2) of Article 254 would in context mean
express agreement of mind to what is proposed by the State.49
6 7 . These decisions are specifically in the context of Article 254. Article 254(1)
postulates inter alia, that in a matter which is governed by the Concurrent List, a law
which has been enacted by the legislature of a state shall be void to the extent of its
repugnancy with a law enacted by the Parliament. Clause (2) of Article 254 obviates that
consequence where the law has been reserved for the consideration of the President and
has received assent. Article 254(1) is made subject to Clause (2), thereby emphasizing
that the assent of the President will cure a repugnancy of the state law with a law
enacted by the Parliament in a matter falling in the Concurrent List. It is in this context,
that the decisions of this Court hold that the assent of the President should be sought in
relation to a repugnancy with a specific provision contained in a Parliamentary
legislation so as to enable due consideration by the President of the ground on which
assent has been sought. Article 200 contains the source of the constitutional power
which is conferred upon the Governor to reserve a Bill for the consideration of the
President. Article 254 (2) is an illustration of the constitutional authority of the
Governor to reserve a law enacted by the state legislature for consideration of the
President in a specified situation-where it is repugnant to an existing law or to a
Parliamentary legislation on a matter falling in the Concurrent List. The eventuality
which is specified in Article 254 (2) does not exhaust the ambit of the power entrusted
to the Governor Under Article 200 to reserve a Bill for the consideration of the
President. Apart from a repugnancy in matters falling in the Concurrent List between
state and Parliamentary legislation, a Governor may have sound constitutional reasons
to reserve a Bill for the consideration of the President. Article 200, in its second proviso
mandates that a Bill which derogates from the powers of the High Court must be
reserved for the consideration of the President. Apart from Bills which fall within the
description set out in the second proviso, the Governor may legitimately refer a Bill for
consideration of the President upon entertaining a legitimate doubt about the validity of
the law. By its very nature, it would not be possible for this Court to reflect upon the
situations in which the power Under Article 200 can be exercised. This was noticed in
the judgment of this Court in Hoechst. Excluding it from judicial scrutiny, the Court
held:
86. ...There may also be a Bill passed by the State Legislature where there may
be a genuine doubt about the applicability of any of the provisions of the
Constitution which require the assent of the President to be given to it in order
that it may be effective as an Act. In such a case, it is for the Governor to
exercise his discretion and to decide whether he should assent to the Bill or
should reserve it for consideration of the President to avoid any future

complication. Even if it ultimately turns out that there was no necessity for the
Governor to have reserved a Bill for the consideration of the President, still he
having done so and obtained the assent of the President, the Act so passed
cannot be held to be unconstitutional on the ground of want of proper assent.
This aspect of the matter, as the law now stands, is not open to scrutiny by the
courts. In the instant case, the Finance Bill which ultimately became the Act in
question was a consolidating Act relating to different subjects and perhaps the
Governor felt that it was necessary to reserve it for the assent of the President.
We have no hesitation in holding that the assent of the President is not
justiciable, and we cannot spell out any infirmity arising out of his decision to
give such assent.50
68. Hoechst is an authority for the proposition that the assent of the President is non-
justiciable. Hoechst also lays down that even if, as it turns out, it was not necessary for
the Governor to reserve a Bill for the consideration of the President, yet if it was
reserved for and received the assent of the President, the law as enacted cannot be
regarded as unconstitutional for want of 'proper' assent.
69. The above decisions essentially answer the submissions which were urged by Dr
Dhavan. The law as propounded in the line of precedents adverted to above must
negate the submissions which were urged on behalf of the Petitioners. Once the Bill
(which led to the Reservation Act 2018) was reserved by the Governor for the
consideration of the President, it was for the President to either grant or withhold assent
to the Bill. The President having assented to the Bill, the requirements of Article 201
were fulfilled. The validity of the assent by the President is non-justiciable. The
Governor, while reserving the Bill in the present case for the consideration of the
President on 6 December 2017 observed thus:
The Supreme Court in the case of B.K. Pavitra Case, while considering the issue
of grant of promotion to persons belonging to SC and STs has observed the
necessity of applying the test of inadequacy of representation, backwardness
and overall efficiency, for exercise of power Under Article 16 (4A) of the
Constitution and has directed the State Government to revise the seniority list
within the time frame.
The State Government to overcome the situation which was found fault with by
the Supreme Court in the aforesaid judgment has come out with a Bill, which is
now sent for my assent.
Having regard to the judgment of the Supreme Court in the aforesaid case and
importance of the issue and the Constitutional interpretation involved in the
matter, I deem it appropriate to reserve the matter for the consideration of the
President. Accordingly, the Bill is reserved for the consideration of the President
Under Article 200 of the Constitution of India.
70. The state government, in the course of its clarifications, was of the view that there
was no necessity of reserving the Bill for the consideration of the President, since in its
view, the Governor had not recorded a finding that it was unconstitutional, or fell afoul
of existing central legislation on the subject or that it was beyond legislative
competence or derogated from the fundamental rights. All procedural requirements
under the Constitution were according to the government duly complied with. This
objection of the state government cannot cast doubt upon the grant of assent by the
President. The law having received the assent of the President, the submissions which

were urged on behalf of the Petitioners cannot be countenanced.
E Does the Reservation Act 2018 overrule or nullify B.K. Pavitra I
7 1 . The foundation of the decision in B.K. Pavitra I is the principle enunciated in
Nagaraj that in order to sustain the exercise of the enabling power contained in Article
16 (4A), the state is required to demonstrate a "compelling necessity" by collecting
quantifiable data on: (i) inadequacy of representation; (ii) backwardness; and (iii)
overall efficiency. The judgment in B.K. Pavitra I held that no such exercise was
undertaken by the State of Karnataka before providing for reservation in promotion and
providing for consequential seniority. On the ground that the state had not collected
quantifiable data on the three parameters enunciated in Nagaraj, the Reservation Act
2002 was held to be unconstitutional. The Constitution Bench in Nagaraj upheld the
validity of Article 16 (4A) on the basis that before taking recourse to the enabling power
the state has to carry out the exercise of collecting quantifiable data and fulfilling the
three parameters noted above. B.K. Pavitra I essentially held that there was a failure on
the part of the state to undertake this exercise, which was a pre-condition for the
exercise of the enabling power to make reservations in promotions and to provide for
consequential seniority.
7 2 . The decision in B.K. Pavitra I did not restrain the state from carrying out the
exercise of collecting quantifiable data so as to fulfil the conditionalities for the exercise
of the enabling power Under Article 16 (4A). The legislature has the plenary power to
enact a law. That power extends to enacting a legislation both with prospective and
retrospective effect. Where a law has been invalidated by the decision of a
constitutional court, the legislature can amend the law retrospectively or enact a law
which removes the cause for invalidation. A legislature cannot overrule a decision of the
court on the ground that it is erroneous or is nullity. But, it is certainly open to the
legislature either to amend an existing law or to enact a law which removes the basis on
which a declaration of invalidity was issued in the exercise of judicial review. Curative
legislation is constitutionally permissible. It is not an encroachment on judicial power.
In the present case, state legislature of Karnataka, by enacting the Reservation Act
2018, has not nullified the judicial decision in B.K. Pavitra I, but taken care to remedy
the underlying cause which led to a declaration of invalidity in the first place. Such a
law is valid because it removes the basis of the decision.
73. These principles have consistently been reiterated in a line of precedents emerging
from this Court. In Utkal Contractors and Joinery (P) Ltd., this Court held:
15....The legislature may, at any time, in exercise of the plenary power
conferred on it by Articles 245 and 246 of the Constitution render a judicial
decision ineffective by enacting a valid law. There is no prohibition against
retrospective legislation. The power of the legislature to pass a law postulates
the power to pass it prospectively as well as retrospectively. That of course, is
subject to the legislative competence and subject to other constitutional
limitations. The rendering ineffective of judgments or orders of competent
courts by changing their basis by legislative enactment is a well-known pattern
of all validating acts. Such validating legislation which removes the causes of
ineffectiveness or invalidity of action or proceedings cannot be considered as
encroachment on judicial power. The legislature, however, cannot by a bare
declaration, without more, directly overrule, reverse or set aside any judicial
decision...51

(See also in this context: Bhubaneshwar Singh v. Union of India MANU/SC/0844/1994 :
(1994) 6 SCC 77, Indian Aluminium Co. v. State of Kerala MANU/SC/0370/1996 :
(1996) 7 SCC 637 ("Indian Aluminium Co"), Narain Singh MANU/SC/1129/2009 :
(2009) 13 SCC 165 and Cheviti Venkanna Yadav).
74. The legislature has the power to validate a law which is found to be invalid by
curing the infirmity. As an incident of the exercise of this power, the legislature may
enact a validating law to make the provisions of the earlier law effective from the date
on which it was enacted (The United Provinces v. Mst Atiqa Begum MANU/FE/0003/1940
: AIR 1941 FC 16 and Rai Ramkrishna v. State of Bihar MANU/SC/0031/1963 : (1964) 1
SCR 8). These principles were elucidated in the decision of this Court in Prithvi Cotton
Mills Ltd. The judgment makes a distinction between a law which simply declares that a
decision of the court will not bind (which is impermissible for the legislature) and a law
which fundamentally alters the basis of an earlier legislation so that the decision would
not have been given in the altered circumstances. This distinction is elaborated in the
following extract:
4. ... Granted legislative competence, it is not sufficient to declare merely that
the decision of the Court shall not bind for that is tantamount to reversing the
decision in exercise of judicial power which the Legislature does not possess or
exercise. A court's decision must always bind unless the conditions on which it
is based are so fundamentally altered that the decision could not have been
given in the altered circumstances. Ordinarily, a court holds a tax to be
invalidly imposed because the power to tax is wanting or the statute or the
Rules or both are invalid or do not sufficiently create the jurisdiction. Validation
of a tax so declared illegal may be done only if the grounds of illegality or
invalidity are capable of being removed and are in fact removed and the tax
thus made legal.52
75. In State of T.N. v. Arooran Sugars Ltd. MANU/SC/0426/1997 : (1997) 1 SCC 326, a
Constitution Bench of this Court recognized the power of the legislature to enact a law
retrospectively to cure a defect found by the Court. It was held that in doing so, the
legislature did not nullify a writ or encroach upon judicial power. The legislature in
remedying a deficiency in the law acted within the scope of its authority. This Court
held:
16. ...It is open to the legislature to remove the defect pointed out by the court
or to amend the definition or any other provision of the Act in question
retrospectively. In this process it cannot be said that there has been an
encroachment by the legislature over the power of the judiciary. A court's
directive must always bind unless the conditions on which it is based are so
fundamentally altered that under altered circumstances such decisions could not
have been given. This will include removal of the defect in a statute pointed out
in the judgment in question, as well as alteration or substitution of provisions
of the enactment on which such judgment is based, with retrospective effect.53
The same principle was formulated in the decision of this Court in Virender Singh Hooda
v. State of Haryana MANU/SC/0929/2004 : (2004) 12 SCC 588:
59....vested rights can be taken away by retrospective legislation by removing
the basis of a judgment so long as the amendment does not violate the
fundamental rights. We are unable to accept the broad proposition... that the
effect of the writs issued by the courts cannot be nullified by the legislature by

enacting a law with retrospective effect. The question, in fact, is not of
nullifying the effect of writs which may be issued by the High Court or this
Court. The question is of removing the basis which resulted in issue of such a
writ. If the basis is nullified by enactment of a valid legislation which has the
effect of depriving a person of the benefit accrued under a writ, the denial of
such benefit is incidental to the power to enact a legislation with retrospective
effect. Such an exercise of power cannot be held to be usurpation of judicial
power...54
76. A declaration by a court that a law is constitutionally invalid does not fetter the
authority of the legislature to remedy the basis on which the declaration was issued by
curing the grounds for invalidity. While curing the defect, it is essential to understand
the reasons underlying the declaration of invalidity. The reasons constitute the basis of
the declaration. The legislature cannot simply override the declaration of invalidity
without remedying the basis on which the law was held to be ultra vires. A law may
have been held to be invalid on the ground that the legislature which enacted the law
had no legislative competence on the subject matter of the legislation. Obviously, in
such a case, a legislature which has been held to lack legislative competence cannot
arrogate to itself competence over a subject matter over which it has been held to lack
legislative competence. However, a legislature which has the legislative competence to
enact a law on the subject can certainly step in and enact a legislation on a field over
which it possesses legislative competence. For instance, where a law has been
invalidated on the ground that the state legislature lacks legislative competence to enact
a law on a particular subject-Parliament being conferred with legislative competence
over the same subject-it is open for the Parliament, following a declaration of the
invalidity of the state law, to enact a new law and to regulate the area. As an incident of
its validating exercise, Parliament may validate the collection of a levy under the earlier
law. The collection of a levy under a law which has been held to be invalid is validated
by the enactment of legislation by a legislative body-Parliament in the above example-
which has competence over the subject matter. Apart from legislative competence, a law
may have been declared invalid on the ground that there was a breach of the
fundamental rights contained in Part III of the Constitution. In that situation, if the
legislature proceeds to enact a new law on the subject, the issue in essence is whether
the re-enacted law has taken care to remove the infractions of the fundamental rights
on the basis of which the earlier law was held to be invalid. The true test therefore is
whether the legislature has acted within the bounds of its authority to remedy the basis
on which the earlier law was held to suffer from a constitutional infirmity.
77. The Petitioners have placed a considerable degree of reliance on the decision in
Madan Mohan Pathak, where a law-The Life Insurance Corporation (Modification of
Settlements) Act 1976 was enacted by Parliament to render ineffective a settlement
which was arrived at between LIC and its employees for the payment of bonus. The law
was challenged by the employees. In that case, there was a judgment of the Calcutta
High Court which had given effect to the right of the employees to an annual cash
bonus under an industrial settlement, by the issuance of a writ of mandamus. The
mandamus bound the parties to the dispute. It was in this backdrop that the
Constitution Bench observed that the effect of the mandamus issued by the High Court
could not simply be nullified by enacting a law overriding the industrial settlement. This
Court held:
9....Here the judgment given by the Calcutta High Court, which is relied upon
by the Petitioners, is not a mere declaratory judgment holding an impost or tax
to be invalid, so that a validation statute can remove the defect pointed out by

the judgment amending the law with retrospective effect and validate such
impost or tax. But it is a judgment giving effect to the right of the Petitioners to
annual cash bonus under the Settlement by issuing a writ of mandamus
directing the Life Insurance Corporation to pay the amount of such bonus. If by
reason of retrospective alteration of the factual or legal situation, the judgment
is rendered erroneous, the remedy may be by way of appeal or review, but so
long as the judgment stands, it cannot be disregarded or ignored and it must be
obeyed by the Life Insurance Corporation. We are, therefore, of the view that,
in any event, irrespective of whether the impugned Act is constitutionally valid
or not, the Life Insurance Corporation is bound to obey the writ of mandamus
issued by the Calcutta High Court and to pay annual cash bonus for the year
April 1, 1975 to March 31, 1976 to Class III and Class IV employees.55
78. The decision in Madan Mohan Pathak is hence distinguishable from the facts of the
present case. The above observations recognized the constitutional position that in the
case of a declaratory judgment holding an action to be invalid, a validating legislation
to remove the defect is permissible. Applying this principle, it is evident that the
decision in B.K. Pavitra I declared the Reservation Act 2002 to be invalid and
consequent upon the declaration of invalidity, certain directions were issued. If the
basis on which Reservation Act 2002 was held to be invalid is cured by a validating
legislation, in this case the Reservation Act 2018, this would constitute a permissible
legislative exercise. The grounds which weighed in Madan Mohan Pathak would hence
not be available in the present case.
79. The decision in Madan Mohan Pathak has been adverted to and clarified in several
decisions of this Court rendered subsequently. These include:
(i) Sri Ranga Match Industries v. Union of India MANU/SC/1131/1994 : 1994
Supp. (2) SCC 726, where it was held that:
14. While appreciating the ratio of the said opinions, it is necessary to
bear in mind the basic fact that the settlement between the Corporation
and its employees was not based upon any statute or statutory
provision. Sub-sections (1) and (3) of Section 18 of the Industrial
Disputes Act provide merely the binding nature of such settlements;
they do not constitute the basis of the settlements. The settlement
between the parties was directed to be implemented by the
High Court. In other words, it was not a case where the High
Court either struck down a statutory provision nor was it a case
where a statutory provision was interpreted in a particular
manner or directed to be implemented. It was also not a case
where the statutory provision, on which the judgment was
based, was amended or altered to remove/rectify the defect.56
(Emphasis supplied)
(ii) Indian Aluminium Co, where it was held that:
49. In Madan Mohan Pathak v. Union of India MANU/SC/0253/1978 :
(1978) 2 SCC 50: 1978 SCC (L&S) 103: (1978) 3 SCR 334]...
From the observations made by Bhagwati, J. per majority, it is clear
that this Court did not intend to lay down that Parliament,
under no circumstance, has power to amend the law removing

the vice pointed out by the court. Equally, the observation of Chief
Justice Beg is to be understood in the context that as long as the
effect of mandamus issued by the court is not legally and
constitutionally made ineffective, the State is bound to obey
the directions. Thus understood, it is unexceptionable. But it does not
mean that the learned Chief Justice intended to lay down the law that
mandamus issued by court cannot at all be made ineffective by a valid
law made by the legislature, removing the defect pointed out by the
court.57
(Emphasis supplied)
(iii) Agricultural Income Tax Officer v. Goodricke Group Ltd.
MANU/SC/0364/2015 : (2015) 8 SCC 399, where it was held:
1 4 . We are of the view that Madan Mohan Pathak case
[MANU/SC/0253/1978 : (1978) 2 SCC 50: 1978 SCC (L&S) 103:
(1978) 3 SCR 334] would not apply to the facts in the present case for
the simple reason that what has been undone by Section 4-B and
Section 78-C is not a mandamus issued by a superior court.
What is undone is the very basis of the judgment in Buxa Dooars
Tea Co. Ltd. case [MANU/SC/0086/1989 : (1989) 3 SCC 211: 1989 SCC
(Tax) 394] by retrospectively changing the levy of rural employment
cess and education cess.58
(Emphasis supplied)
80. Madan Mohan Pathak involved a situation where a parliamentary law was enacted to
override a mandamus which was issued by the High Court for the payment of bonus
under an industrial settlement. The case did not involve a situation where a law was
held to be ultra vires and the basis of the declaration of invalidity of the law was sought
to be cured.
81. Dr Dhavan adverted to the legal basis of B.K. Pavitra I as set out in the following
extract from the conclusion:
3 0 . In view of the above, we allow these appeals, set aside the impugned
judgment and declare the provisions of the impugned Act to the extent of doing
away with the 'catch-up' Rule and providing for consequential seniority Under
Sections 3 and 4 to persons belonging to SCs and STs on promotion against
roster points to be ultra vires Articles 14 and 16 of the Constitution.59
Dr. Dhavan is entirely correct, if we may say so with respect, in submitting "that what
has to be shown is whether the Reservation Act 2018 is, in law Articles 14 and 16
compliant". This necessitates an examination of the constitutionality of the Reservation
Act 2018. That would require this Court to examine the challenge on the ground that
there has been a violation of the equality code contained in Articles 14 and 16.
E.1 Is the basis of B.K. Pavitra I cured in enacting the Reservation Act 2018
82. The Statement of Objects and Reasons of the Reservation Act 2018 refers to the
legislative history preceding its enactment. The Ratna Prabha Committee was
constituted after the Reservation Act 2002 was held to be invalid in B.K. Pavitra I on the
ground that no compelling necessity had been shown by the state to provide for

reservation in matters of promotion for SCs and STs by collecting and analysing
relevant data to satisfy the requirements laid out in Nagaraj. The constitution of the
Ratna Prabha Committee was consequent upon the Reservation Act 2002 having been
held to be invalid in B.K. Pavitra I.
83. The Statement of Objects and Reasons is extracted below, insofar as it is material:
The Hon'ble Supreme Court of India in its judgment dated: 09.02.2017 in the
case of B.K. Pavitra and Ors. v. Union of India and Ors. in Civil Appeal No.
2368 of 2011 and connected matters while dealing with the issue of
consequential seniority provided to the Scheduled Castes and Scheduled Tribes,
having regard to the ratio of the decision of the Constitution Bench in M.
Nagaraj in Writ Petition No. 61 of 2002 has observed that a proper exercise for
determining 'inadequacy of representation' 'backwardness' and 'overall
efficiency' is a must for exercise of power Under Article 16 (4A). The court held
that in the absence of this exercise Under Article 16 (4A) it is the "catch-up"
Rule that shall be applicable. Having observed this the Court declared the
provisions of Sections 3 and 4 of the Karnataka Act 10 of 2002 to be ultra vires
of Articles 14 and 16 of the Constitution. The Hon'ble Supreme Court directed
that revision of the Seniority lists be undertaken and completed within three
months and further consequential action be taken within the next three months;
In order to comply with the directions of the Hon'ble Supreme Court in B.K.
Pavitra and Ors. v. Union of India and Ors. in Civil Appeal No. 2368 of 2011 the
Government has issued order vide Government order No. DPAR 182 SRR 2011
dated 06.05.2017 to all appointing authorities to revise the seniority lists;
While in compliance of the Supreme Court order, the Government considering
the need and taking note of the decision of the Constitution Bench in M
Nagaraj, in Writ Petition No. 61 of 2002, has entrusted the task of conducting
study and submitting a report on the backwardness of the Scheduled Castes and
Scheduled Tribes in the state, inadequacy of their representation in the State
Civil Services and the effect of reservation in promotion on the State
administration, to the Additional Chief Secretary to Government in Government
order No. DPAR 182 SRR 2011 dated 22.03.2017;
The Additional Chief Secretary to Government with the assistance of officers
from various departments has collated the scientific, quantifiable and relevant
data collected and having made a detailed study of quantifiable data has
submitted a report on backwardness of Scheduled Castes and Scheduled Tribes
in the state, inadequacy of their representation in the State Civil Services and
the effect of reservation in promotion on the State administration to the State
Government;
The report confirms the backwardness of the Scheduled Castes and Scheduled
Tribes in the state, inadequacy of their representation in the State Civil Services
and that the overall efficiency of administration has not been affected or
hampered by extending reservation in promotion to the Scheduled Castes and
Scheduled Tribes in the state and continuance of reservation in promotion
within the limits will not affect or hamper overall efficiency of administration;
8 4 . The first principle of statutory interpretation guides us towards the view that
undoubtedly, the Statement of Objects and Reasons:

(i) Cannot be used for restricting the plain meaning of a legislation60;
(ii) Cannot determine whether a provision is valid61; and
(iii) May not be definitive of the circumstances in which it was passed62. [See
in this context Welfare Association v. Ranjit MANU/SC/0129/2003 : (2003) 9
SCC 358].
85. The preamble to a law may be a statutory aid to consider the mischief which the
law seeks to address. While it cannot prevail over the provisions of the statute, it can be
an aid to resolve an ambiguity63.
86. In the course of his submissions, Dr Dhavan has emphasized the "new provisions"
contained in the Reservation Act 2018. These according to him, are:
(i) Section 2 (d) which defines 'backlog';
(ii) Section 5 under which the appointing authority is to revise and redraw the
existing seniority lists;
(iii) Section 7 which deals with the power to remove difficulties;
(iv) Section 8 which provides for the repeal of the Reservation Act 2002; and
(v) Section 9 which is a validating provision.
87. The essential issue which now needs to be addressed by this Court is whether the
basis of the decision in B.K. Pavitra I has been cured. The decision of the Constitution
Bench in Nagaraj mandates that before the State can take recourse to the enabling
power contained in Clauses (4A) and (4B) of Article 16, it must demonstrate the
existence of "compelling reasons" on three facets: (i) backwardness; (ii) inadequacy of
representation; and (iii) overall administrative efficiency. In Jarnail, the Constitution
Bench clarified that the first of the above factors-"backwardness" has no application in
the case of reservations for the SCs and STs. Nagaraj to that extent was held to be
contrary to the decision of the larger Bench in Indra Sawhney.
E.2 The Ratna Prabha Committee report
88. The decision in B.K. Pavitra I was rendered on 9 February 2017. The Ratna Prabha
Committee was established on 22 March 2017. Its report was examined by a Cabinet
Sub-Committee on 4 August 2017 and was eventually approved by the Cabinet on 7
August 2017. The Ratna Prabha Committee report was commissioned to: (i) collect
information on cadre wise representation of SC and ST employees in all government
departments; (ii) collect information on backwardness of SCs and STs; and (iii) study
the effect on the administration due to the promotion of SCs and STs.
89. Dr Dhavan's challenge to the report is basically founded on the following features:
(i) Only thirty one out of sixty two government departments were examined;
(ii) No data was collected for public sector undertakings, boards, corporations,
local bodies, grant-in-aid institutions and autonomous bodies;
(iii) In PWD and KPTCL, the representation is excessive;

(iv) The data is vacancy based and not post based as required by Sabharwal;
(v) The data is on sanctioned posts and not of filled posts;
(vi) The data is based on grades A, B, C and D and not cadre based; and
(vii) On efficiency, there is only a general reference to the economic
development of the State of Karnataka.
90. Based on the above features, the Petitioners have invoked the power of judicial
review. Dr Dhavan emphasized that the decision in Nagaraj upheld the constitutional
validity of successive constitutional amendments to Article 16 conditional upon the
existence of compelling reasons which must be demonstrated by the State by collecting
and analysing relevant data. It is submitted that the flaws in the report of the Ratna
Prabha Committee would indicate that the compelling reasons which constitute the
foundation for the exercise of the enabling power contained in Article 16 are absent,
which must result in the invalidation of the Reservation Act 2018.
91. Before we deal with the merits of the attack on the Ratna Prabha Committee report,
it is necessary to set down the parameters on which judicial review can be exercised.
Essentially, the exercise which the Petitioners require this Court to undertake is to
scrutinize the underlying collection of data by the State on two facets laid out in
Nagaraj, as now clarified by Jarnail: (i) the adequacy of representation; and (ii) impact
on efficiency in administration.
Clause (4) of Article 16 contains an enabling provision to empower the State to make
reservations in appointments or posts in favour of any backward class of citizens
"which, in the opinion of the State, is not adequately represented in the services under
the State". Clause (4A) contains an enabling provision that allows the state to provide
for reservations in promotion with consequential seniority in posts or classes of posts in
services under the State in favour of SCs and STs. Clause (4A) also uses the expression
"which, in the opinion of the State, are not adequately represented in the services under
the State". In Indra Sawhney, while construing the nature of the satisfaction which has
to be arrived at by the State, this Court held:
798.....The language of Clause (4) makes it clear that the question whether a
backward class of citizens is not adequately represented in the services under
the State is a matter within the subjective satisfaction of the State. This is
evident from the fact that the said requirement is preceded by the words "in the
opinion of the State". This opinion can be formed by the State on its own, i.e.,
on the basis of the material it has in its possession already or it may gather
such material through a Commission/Committee, person or authority. All that is
required is, there must be some material upon which the opinion is formed.
Indeed, in this matter the court should show due deference to the opinion of
the State, which in the present context means the executive. The executive is
supposed to know the existing conditions in the society, drawn as it is from
among the representatives of the people in Parliament/Legislature. It does not,
however, mean that the opinion formed is beyond judicial scrutiny altogether.
The scope and reach of judicial scrutiny in matters within subjective
satisfaction of the executive are well and extensively stated in Barium
Chemicals v. Company Law Board MANU/SC/0037/1966 : [1966 Supp SCR
311: AIR 1967 SC 295] which need not be repeated here. Suffice it to
mention that the said principles apply equally in the case of a
constitutional provision like Article 16 (4) which expressly places the

particular fact (inadequate representation) within the subjective
judgment of the State/executive.64
(Emphasis supplied)
The above extract from the decision in Indra Sawhney presents two mutually
complementary and reinforcing principles. The first principle is that the executive arm of
the state is aware of prevailing conditions. The legislature represents the collective will
of the people through their elected representatives. The presumption of constitutionality
of a law enacted by a competent legislature traces itself to the fundamental doctrine of
constitutional jurisprudence that the legislature is accountable to those who elect their
representatives. Collectively, the executive and the legislature are entrusted with the
constitutional duty to protect social welfare. This Court explained in Amalgamated Tea
Estates Co. Ltd. v. State of Kerala MANU/SC/0089/1974 : (1974) 4 SCC 415, the
rationale for the principles of constitutionality:
11. The reason why a statute is presumed to be constitutional is that the
Legislature is the best judge of the local conditions and circumstances and
special needs of various classes of persons. "(T)he Legislature is the best judge
of the needs of particular classes and to estimate the degree of evil so as to
adjust its legislation according to the exigency found to exist.65
This principle was reiterated in V.C. Shukla v. State (Delhi Administration)
MANU/SC/0545/1980 : (1980) Supp SCC 249:
11. ...Furthermore, the legislature which is in the best position to understand
the needs and requirements of the people must be given sufficient latitude for
making selection or differentiation and so long as such a selection is not
arbitrary and has a rational basis having regard to the object of the Act, Article
14 would not be attracted. That is why this Court has laid down that
presumption is always in favour of the constitutionality of an enactment and the
onus lies upon the person who attacks the statute to show that there has been
an infraction of the constitutional concept of equality.66
92. More recently, this was emphasized in State of Himachal Pradesh v. Satpal Saini
MANU/SC/0151/2017 : (2017) 11 SCC 42:
1 2 . ...The duty to formulate policies is entrusted to the executive whose
accountability is to the legislature and, through it, to the people. The peril of
adopting an incorrect policy lies in democratic accountability to the people....67
93. The second of the reinforcing principles which emerges from Indra Sawhney is that
the opinion of the government on the adequacy of representation of the SCs and STs in
the public services of the state is a matter which forms a part of the subjective
satisfaction of the state. Significantly, the extract from Indra Sawhney reproduced
earlier adverts to the decision in Barium Chemicals Ltd., which emphasises that when an
authority is vested with the power to form an opinion, it is not open for the court to
substitute its own opinion for that of the authority, nor can the opinion of the authority
be challenged on grounds of propriety or sufficiency. In Nagaraj, while dealing with the
parameters governing the assessment of the adequacy of representation or of the
impact on efficiency, the Constitution Bench held:
45.. . . The basic presumption, however, remains that it is the State

who is in the best position to define and measure merit in whatever
ways it consider it to be relevant to public employment because
ultimately it has to bear the costs arising from errors in defining and
measuring merit. Similarly, the concept of "extent of reservation" is not an
absolute concept and like merit it is context-specific.
...
49. Reservation is necessary for transcending caste and not for perpetuating it.
Reservation has to be used in a limited sense otherwise it will perpetuate
casteism in the country. Reservation is underwritten by a special justification.
Equality in Article 16(1) is individual-specific whereas reservation in Article 16
(4) and Article 16(4A) is enabling. The discretion of the State is, however,
subject to the existence of "backwardness" and "inadequacy of representation"
in public employment. Backwardness has to be based on objective factors
whereas inadequacy has to factually exist. This is where judicial review
comes in. However, whether reservation in a given case is desirable or
not, as a policy, is not for us to decide as long as the parameters
mentioned in Articles 16 (4) and 16 (4A) are maintained. As stated above,
equity, justice and merit (Article 335)/efficiency are variables which
can only be identified and measured by the State.
...
102...equity, justice and efficiency are variable factors. These factors are
context-specific. There is no fixed yardstick to identify and measure
these three factors, it will depend on the facts and circumstances of
each case.68
(Emphasis supplied)
94. The element of discretion vested in the state governments to determine adequacy of
representation in promotional posts is once again emphasized in the following extract
from the decision in Jarnail:
35. ...According to us, Nagaraj has wisely left the test for determining
adequacy of representation in promotional posts to the States for the
simple reason that as the post gets higher, it may be necessary, even if a
proportionality test to the population as a whole is taken into account, to
reduce the number of Scheduled Castes and Scheduled Tribes in promotional
pots, as one goes upwards. This is for the simple reason that efficiency of
administration has to be looked at every time promotions are made. As has
been pointed out by B P Jeevan Reddy, J.'s judgment in Indra Sawhney, there
may be certain posts right at the top, where reservation is impermissible
altogether. For this reason, we make it clear that Article 16 (4A) has been
couched in language which would leave it to the States to determine
adequate representation depending upon the promotional post that is
in question.69
(Emphasis supplied)
95. In dealing with the submissions of the Petitioners on this aspect, it is relevant for
this Court to recognize the circumspection with which judicial power must be exercised
on matters which pertain to propriety and sufficiency, in the context of scrutinizing the

underlying collection of data by the State on the adequacy of representation and impact
on efficiency. The Court, is above all, considering the validity of a law which was
enacted by the State legislature for enforcing the substantive right to equality for the
SCs and STs. Judicial review must hence traverse conventional categories by
determining as to whether the Ratna Prabha Committee report considered material
which was irrelevant or extraneous or had drawn a conclusion which no reasonable
body of persons could have adopted. In this area, the fact that an alternate line of
approach was possible or may even appear to be desirable cannot furnish a foundation
for the assumption by the court of a decision making authority which in the legislative
sphere is entrusted to the legislating body and in the administrative sphere to the
executive arm of the government.
96. On the inadequacy of representation, the summary which emerges from the Ratna
Prabha Committee report is as follows:
2.5: Summary:
1) The analysis of time series data collected for the last 32 years
(1984-2016 except for 1986) across 31 Departments of the State
Government provides the rich information on the inadequacy of
representation of SCs and STs employees in various cadres of
Karnataka Civil Services.
2) The total number of sanctioned posts as per the data of 2016 is
7,45,593 of which 70.22 percent or 5,23,574 are filled up across 31
Departments.
3) The vacancies or posts are filled up through Direct Recruitment (DR)
and Promotions including consequential promotion.
4) The overall representation of the SC and ST employees of all 31
Departments in comparison with total sanctioned posts comprises of
10.65 per cent and 2.92 per cent respectively. This proves inadequacy
of representation of SCs and STs.
5) On an average the representation in Cadre A for SCs is at 12.07 per
cent and STs 2.70 per cent which sufficiently proves the inadequacy of
representation.
6) The extent of representation in Cadre B is on an average of 9.79 per
cent and 2.34 per cent for ST for all the years of the study period.
7) It is observed that on an average 3.05 per cent of SC representation
is inadequate in the Cadre 'C' whereas, 0.05 per cent excess
representation is seen for ST.
8) On an average of 2 per cent and 1 per cent over representation of
employees of SCs and STs is found in Cadre D respectively. However,
in the last 5 years, inadequacy of representation of SCs by 3 per cent is
found in this cadre.
9) The representation of Scheduled Caste in Cadre A, B and C is on an
average 12, 9.79 and 12.04 per cent respectively whereas in Cadre D it
is 16.91.

10) In case of STs in the cadres A and B the representation is 2.70 and
2.34 per cent. However, excess representation of 0.04 and 0.93 per
cent is found in case of Group C and Group D respectively.
11) Over representation in some years and departments is attributed to
either Direct Recruitment or retirement of employees or filling up of
backlog vacancies as the later does not fall under 50 per cent limitation
of reservation.
2.6: Conclusion:
The data clearly shows the inadequacy of representation of SCs and STs in the
civil services in Groups A, B and C and adequate representation in Group D.
9 7 . Collection of data and its analysis are governed by varying and often divergent
approaches in the social sciences. An informative treatise on the subject titled Empirical
Political Analysis-Quantitative and Qualitative Research Methods70 distinguishes
between obtaining knowledge and using knowledge. The text seeks to explain empirical
analysis on the one hand and normative analysis on the other hand:
Social Scientists distinguish between obtaining knowledge and using
knowledge. Dealing with factual realities is termed empirical analysis. Dealing
with how we should use our knowledge of the world is termed normative
analysis.
Empirical analysis is concerned with developing and using a common, objective
language to describe and explain reality. It can be quantitative or qualitative.
Quantitative analyses are based on math-based comparisons of the
characteristics of the various objects or events that we study. Qualitative
analyses are based on the researcher's informed and contextual understanding
of objects or events.
Normative analysis is concerned with developing and examining subjective
values and ethical Rules to guide us in judging and applying what we have
learned about reality. Although the emphasis in this book is on empirical
analysis, it seeks to develop an appreciation of the larger, normative
perspective within which knowledge is acquired, interpreted, and applied
through a discussion of the ethics of research.
Normative analysis without an empirical foundation can lead to value judgments
that are out of touch with reality. Empirical analysis in the absence of
sensitivity to normative concerns, on the other hand, can lead to the collection
of observations whose significance we are not prepared to understand fully. The
objective in undertaking political inquiry is to draw upon both types of analysis-
empirical and normative-so as to maximize not only our factual knowledge, but
also our ability to use the facts we discover wisely.
9 8 . In supporting the methodology which has been adopted by the Ratna Prabha
Committee, Ms. Indira Jaising, learned Senior Counsel emphasized that:
(i) Save and except where a national census is proposed to be conducted, data
collection is based on valid sampling methods on which conclusions are drawn;
(ii) Research methodology can be qualitative as well as quantitative-the present

case deals with the collection of quantitative data;
(iii) Quantitative data is also collected on the basis of sample surveys. In this
case, the purpose of the study was to collect data on the adequacy of
representation in promotional posts and the sample which was chosen was a
representative sample from which conclusions were drawn; and
(iv) In the study conducted by the State of Karnataka, statistics of a number of
persons belonging to the SCs and STs in promotional posts were collected
group wise. The groups include cadres. Hence, it stands to reason that if the
data is collected in relation to a group, it will include data pertaining to cadres
as well since, every cadre within the group has been statistically enquired.
99. We find merit in the above submissions. The methodology which was adopted by
the Ratna Prabha Committee has not been demonstrated to be alien to conventional
social science methodologies. We are unable to find that the Committee has based its
conclusions on any extraneous or irrelevant material. In adopting recourse to sampling
methodologies, the Committee cannot be held to have acted arbitrarily. If, as we have
held above, sampling is a valid methodology for collection of data, the necessary
consequence is that the exercise cannot be invalidated only on the ground that data
pertaining to a particular department or of some entities was not analysed. The data
which was collected pertained to thirty one departments which are representative in
character. The State has analysed the data which is both relevant and representative,
before drawing its conclusions. As we have noted earlier, there are limitations on the
power of judicial review in entering upon a factual arena involving the gathering,
collation and analysis of data.
100. Dr Dhavan has painstakingly compiled charts for the purpose of his argument. We
may also note at this stage that Ms. Jaising in response to the charts relied upon by Dr
Dhavan, also placed on records charts indicating:
(i) Current representation after demotion of SC and ST employees in the PWD
of Karnataka;
(ii) Percentage of SCs and STs in the post of Executive Engineer without
consequential seniority in the PWD; and
(iii) Corresponding figures in the post of Executive Engineer without
consequential seniority in the PWD.
101. We are of the view that once an opinion has been formed by the State government
on the basis of the report submitted by an expert committee which collected, collated
and analysed relevant data, it is impossible for the Court to hold that the compelling
reasons which Nagaraj requires the State to demonstrate have not been established.
Even if there were to be some errors in data collection, that will not justify the
invalidation of a law which the competent legislature was within its power to enact.
After the decision in B.K. Pavitra I, the Ratna Prabha Committee was correctly appointed
to carry out the required exercise. Once that exercise has been carried out, the Court
must be circumspect in exercising the power of judicial review to re-evaluate the factual
material on record.
102. The adequacy of representation has to be assessed with reference to a benchmark
on adequacy. Conventionally, the State and the Central governments have linked the
percentage of reservation for the SCs and STs to their percentage of population, as a

measure of adequacy. The Constitution Bench noticed this in Sabharwal, where it
observed:
4. When a percentage of reservation is fixed in respect of a particular cadre and
the roster indicates the reserve points, it has to be taken that the posts shown
at the reserve points are to be filled from amongst the members of reserve
categories and the candidates belonging to the general category are not entitled
to be considered for the reserved posts. On the other hand the reserve category
candidates can compete for the non-reserve posts and in the event of their
appointment to the said posts their number cannot be added and taken into
consideration for working out the percentage of reservation. Article 16 (4) of
the Constitution of India permits the State Government to make any provision
for the reservation of appointments or posts in favour of any Backward Class of
citizens which, in the opinion of the State is not adequately represented in the
Services under the State. It is, therefore, incumbent on the State Government
to reach a conclusion that the Backward Class/Classes for which the reservation
is made is not adequately represented in the State Services. While doing so the
State Government may take the total population of a particular Backward Class
and its representation in the State Services. When the State Government after
doing the necessary exercise makes the reservation and provides the extent of
percentage of posts to be reserved for the said Backward Class then the
percentage has to be followed strictly. The prescribed percentage cannot be
varied or changed simply because some of the members of the Backward Class
have already been appointed/promoted against the general seats. As mentioned
above the roster point which is reserved for a Backward Class has to be filled
by way of appointment/promotion of the member of the said class. No general
category candidate can be appointed against a slot in the roster which is
reserved for the Backward Class...71
Explaining this further, the Constitution Bench held:
5....Once the prescribed percentage of posts is filled the numerical test of
adequacy is satisfied and thereafter the roster does not survive. The percentage
of reservation is the desired representation of the Backward Classes in the State
Services and is consistent with the demographic estimate based on the
proportion worked out in relation to their population. The numerical quota of
posts is not a shifting boundary but represents a figure with due application of
mind. Therefore, the only way to assure equality of opportunity to the Backward
Classes and the general category is to permit the roster to operate till the time
the respective appointees/promotees occupy the posts meant for them in the
roster...72
Consequently, it is open to the State to make reservation in promotion for SCs and STs
proportionate to their representation in the general population.
103. One of the submissions which has been urged on behalf of the Petitioners is that
the quota has to be reckoned with reference to posts which are actually filled up or the
working strength and not with reference to sanctioned posts. This submission is
answered by the decision in Sabharwal, which holds that the percentage of reservation
has to be worked out in relation to the number of posts which form part of the cadre
strength. The Constitution Bench held:
6 . The expressions 'posts' and 'vacancies', often used in the executive

instructions providing for reservations, are rather problematical. The word 'post'
means an appointment, job, office or employment. A position to which a person
is appointed. 'Vacancy' means an unoccupied post or office. The plain meaning
of the two expressions make it clear that there must be a 'post' in existence to
enable the 'vacancy' to occur. The cadre-strength is always measured by
the number of posts comprising the cadre. Right to be considered for
appointment can only be claimed in respect of a post in a cadre. As a
consequence the percentage of reservation has to be worked out in
relation to the number of posts which form the cadre-strength. The
concept of 'vacancy' has no relevance in operating the percentage of
reservation.73
(Emphasis supplied)
Similarly, in Nagaraj, the Constitution Bench held:
83. In our view, the appropriate Government has to apply the cadre strength as
a unit in the operation of the roster in order to ascertain whether a given
class/group is adequately represented in the service. The cadre strength as a
unit also ensures that upper ceiling limit of 50% is not violated. Further, roster
has to be post-specific and not vacancy based.74
Hence, the submission that the quota must be reckoned on the basis of the posts which
are actually filled up and not the sanctioned posts cannot be accepted.
104. We find no merit in the challenge to the Ratna Prabha Committee report on the
ground that the collection of data was on the basis of groups A, B, C and D as opposed
to cadres. For one thing, the expression 'cadre' has no fixed meaning ascribed to it in
service jurisprudence. But that apart, Nagaraj requires the collection of quantifiable data
inter alia, on the inadequacy of representation in services under the state. Clause 4A of
Article 16 specifically refers to the inadequacy of representation in the services under
the state. The collection of data on the basis of groups A to D does not by its very
nature exclude data pertaining to cadres. The state has studied in the present case the
extent of reservation for SCs and STs in groups A to D, consisting of several cadres.
Since, the group includes posts in all the cadres in that group, it can logically be
presumed that the state has collected quantifiable data on the representation of SCs and
STs in promotional posts in the cadres as well.
105. Another facet of the matter is that in the judgment of Justice Jeevan Reddy in
Indra Sawhney, it was observed that reservation Under Article 16 (4) does not operate
on communal grounds. Hence, if a member belonging to a reserved category is selected
in the general category, the selection would not count against the quota prescribed for
the reserved category. The decision in Sabharwal also noted that while candidates
belonging to the general category are not entitled to fill reserved posts, reserved
category candidates are entitled to compete for posts in the general category. In several
group D posts, such as municipal sweepers, the sobering experience of administration
is that the overwhelmingly large segment of applicants consists of persons belonging to
the SCs and STs. Over representation in group D posts as a result of candidates
belonging to the general category staying away from those posts cannot be a valid or
logical basis to deny promotion to group D employees recruited from the reserved
category.
F Substantive v. formal equality

106. The core of the present case is based on the constitutional content of equality.
1 0 7 . For equality to be truly effective or substantive, the principle must recognise
existing inequalities in society to overcome them. Reservations are thus not an
exception to the Rule of equality of opportunity. They are rather the true fulfilment of
effective and substantive equality by accounting for the structural conditions into which
people are born. If Article 16(1) merely postulates the principle of formal equality of
opportunity, then Article 16(4) (by enabling reservations due to existing inequalities)
becomes an exception to the strict Rule of formal equality in Article 16 (1). However, if
Article 16 (1) itself sets out the principle of substantive equality (including the
recognition of existing inequalities) then Article 16 (4) becomes the enunciation of one
particular facet of the Rule of substantive equality set out in Article 16 (1).
F.1 The Constituent Assembly's understanding of Article 16 (4)
(I) Reservations to overcome existing inequalities in society
(a) There is substantial evidence that the members of the Constituent
Assembly recognised that (i) Indian society suffered from deep
structural inequalities; and (ii) the Constitution would serve as a
transformative document to overcome them. One method of
overcoming these inequalities is reservations for the SCs and STs in the
legislatures and state services. Therefore, for the members of the
Constituent Assembly who supported reservations, a key rationale for
incorporating reservations for SCs and STs in the Constitution was the
existence of inequalities in society based on discrimination and
prejudice within the caste structure. This is evidenced by the
statements in support of reservations for minorities by members. For
example, in the context of legislative reservations for minorities
Monomohan Das noted:
... Therefore, it is evident from the Report of the Minorities
Committee that it is on account of the extremely low
educational and economic conditions of the scheduled castes
and the grievous social disabilities from which they suffer that
the political safeguard of reservation of seats had been granted
to them....75
(b) Prof. Yashwant Rai used similar statements to support reservations
for backward communities in employment:
... Therefore, if you want to give equal status to those
communities which are backward and depressed and on
whom injustice has been perpetrated for thousands of
years and if you want to establish Indian unity, so that the
country may progress and so that many parties in the country
may not mislead the poor, I would say that there should
be a provision in the constitution under which the
educated Harijans may be provided with
employment.... 76
(Emphasis supplied)
(II) Recognition of the insufficiency of formal equality by the

Constituent Assembly
108. During the debates on the principles of equality underlying Article 16 (then draft
Article 10), certain members of the Assembly recognised that in order to give true effect
to the principle of equality of opportunity, the Constitution had to expressly recognise
the existing inequalities. For example, Shri Phool Singh noted:
... Much has been made of merit in this case; but equal merit pre-supposes
equal opportunity, and I think it goes without saying that the toiling masses
are denied all those opportunities which a few literate people living in big cities
enjoy. To ask the people from the villages to compete with those city
people is asking a man on bicycle to compete with another on a
motorcycle, which in itself is absurd. Then again, merit should also have some
reference to the task to be discharged...76
(Emphasis supplied)
Similarly, P. Kakkam stated,
.. . If you take merit alone into account, the Harijans cannot come
forward. I say in this house, that the Government must take special steps for
the reservation of appointment for the Harijans for same years. I expect the
government will take the necessary steps to give more appointments in police
and military services also....77
(Emphasis supplied)
109. By recognising that formal equality of opportunity will be insufficient in fulfilling
the transformative goal of the Constitution, these members recognised that the
conception of equality of opportunity must recognise and account for existing societal
inequalities. The most revealing debates as to how the Constituent Assembly
understood equality of opportunity under the Constitution took place on 30 November
1948. Members debated draft Article 10 (which would go on to become Article 16 of the
Constitution). In these debates, some members understood Sub-clause (4) (providing
for reservations) as an exception to the general Rule of formal equality enunciated in
Sub-clause (1). Illustratively, an articulation of this position was made by Mohammad
Ismail Khan, who stated,
... There can be only one of these two things--either there can be clear
equal opportunity or special consideration. Article 10 says there shall be
equality of opportunity, then it emphasises the fact by a negative Clause that no
citizen shall be discriminated on account of religion or race. It is quite good,
but when no indication is given whether this would override Article 296 or
Article 296 is independent of it, we are certainly left in the lurch. What would
be the fate of the minorities? [Article 296 stated that special
considerations shall be shown to minorities to ensure representation
in the services]...77
(Emphasis supplied)
110. Dr. B.R. Ambedkar's response summarises the different conceptions of equality of
opportunity that the members of the assembly put forward. Dr Ambedkar argued that
the inclusion of Sub-clause (4) was a method of recognising the demand that mere
formal equality in Sub-clause (1) would be insufficient, and a balance between formal

equality of opportunity and the needs of the disadvantaged classes of society was
needed. Dr Ambedkar presciently observed:
... If members were to try and exchange their views on this subject, they will
find that there are three points of view which it is necessary for us to reconcile
if we are to produce a workable proposition which will be accepted by all...
The first is that there shall be equality of opportunity for all citizens. It is the
desire of many Members of this House that every individual who is qualified for
a particular post should be free to apply for that post, to sit for examinations
and to have his qualifications tested so as to determine whether he is fit for the
post or not and that there ought to be no limitations...
Another view mostly shared by a Section of the House is that, if this principle is
to be operative--and it ought to be operative in their judgment to its fullest
extent--there ought to be no reservations of any sort for any class or
community at all...
Then we have quite a massive opinion which insists that, although
theoretically it is good to have the principle that there shall be
equality of opportunity, there must at the same time be a provision
made for the entry of certain communities which have so far been
outside the administration. As I said, the Drafting Committee had to
produce a formula which would reconcile these three points of view, firstly, that
there shall be equality of opportunity, secondly that there shall be reservations
in favour of certain communities which have not so far had a 'proper look-in' so
to say into the administration...
The view of those who believe and hold that there shall be equality of
opportunity, has been embodied in Sub-clause (1) of Article 10. It is a
generic principle. At the same time, as I said, we had to reconcile this
formula with the demand made by certain communities that the
administration which has now--for historical reasons-been controlled
by one community or a few communities, that situation should
disappear and that the others also must have an opportunity of getting into
the public services...77
(Emphasis supplied)
F.2 The Constitution as a transformative instrument
1 1 1 . The Constitution is a transformative document. The realization of its
transformative potential rests ultimately in its ability to breathe life and meaning into its
abstract concepts. For, above all, the Constitution was intended by its draftspersons to
be a significant instrument of bringing about social change in a caste based feudal
society witnessed by centuries of oppression of and discrimination against the
marginalised. As our constitutional jurisprudence has evolved, the realisation of the
transformative potential of the Constitution has been founded on the evolution of
equality away from its formal underpinnings to its substantive potential.
112. In the context of reservations, the decision in T. Devadasan v. The Union of India
MANU/SC/0270/1963 : AIR 1964 SC 179 construed Article 16 (4) to be a proviso or an
exception to Article 16 (1). In a dissent which embodied a vision statement of the
Constitution, Justice Subba Rao held:

26. Article 14 lays down the general Rule of equality. Article 16 is an instance
of the application of the general Rule with special reference to opportunity of
appointments under the State. It says that there shall be equality of opportunity
for all citizens in matters relating to employment or appointment to any office
under the State... Centuries of calculated oppression and habitual submission
reduced a considerable Section of our community to a life of serfdom. It would
be well nigh impossible to raise their standards if the doctrine of equal
opportunity was strictly enforced in their case. They would not have any chance
if they were made to enter the open field of competition without adventitious
aids till such time when they could stand on their own legs. That is why the
makers of the Constitution introduced Clause (4) in Article 16. The expression
"nothing in this article" is a legislative device to express its intention in a most
emphatic way that the power conferred thereunder is not limited in any way by
the main provision but falls outside it. It has not really carved out an exception,
but has preserved a power untrammelled by the other provisions of the article.
113. Subsequently, in N.M. Thomas, the Constitution Bench adopted an interpretation
of Articles 15 and 16 which recognized these provisions as but a facet of the doctrine of
equality Under Article 14. Justice K.K. Mathew observed:
78. ...Article 16(4) is capable of being interpreted as an exception to Article
16(1) if the equality of opportunity visualized in Article 16(1) is a sterile one,
geared to the concept of numerical equality which takes no account of the
social, economic, educational background of the members of Scheduled Castes
and Scheduled Tribes. If equality of opportunity guaranteed Under Article 16
(1) means effective material equality, then Article 16(4) is not an exception to
Article 16(1). It is only an emphatic way of putting the extent to which equality
of opportunity could be carried viz., even up to the point of making
reservation.78
In his own distinctive style, Justice Krishna Iyer observed:
139. It is platitudinous constitutional law that Articles 14 to 16 are a common
code of guaranteed equality, the first laying down the broad doctrine, the other
two applying it to sensitive areas historically important and politically polemical
in a climate of communalism and jobbery.79
This Court has set out this latter understanding in several cases including ABS Sangh
(Railways) v. Union of India MANU/SC/0058/1980 : (1981) 1 SCC 246.
114. Ultimately, a Bench of nine judges of this Court in Indra Sawhney recognized that
Article 16 (4) is not an exception to but a facet of equality in Article 16 (1). Justice
Jeevan Reddy delivering the judgment of a plurality of four judges observed:
741.... Article 16(4) is not an exception to Article 16(1) but that it is only an
emphatic way of stating the principle inherent in the main provision itself...
In our respectful opinion, the view taken by the majority in Thomas
[MANU/SC/0479/1975 : (1976) 2 SCC 310, 380: 1976 SCC (L&S) 227: (1976)
1 SCR 906] is the correct one. We too believe that Article 16(1) does permit
reasonable classification for ensuring attainment of the equality of opportunity
assured by it.80

115. Justice Mathew in N M Thomas spoke of the need for proportional equality as a
means of achieving justice. Highlighting the notion that equality under the Constitution
is based on the substantive idea of providing equal access to resources and
opportunities, learned judge observed:
73. There is no reason why this Court should not also require the State to adopt
a standard of proportional equality which takes account of the differing
conditions and circumstances of a class of citizens whenever those conditions
and circumstances stand in the way of their equal access to the enjoyment of
basic rights or claims.81
Carrying these precepts further Justice S.H. Kapadia (as the learned judge then was)
speaking for the Constitution Bench in Nagaraj observed:
51....Therefore, there are three criteria to judge the basis of distribution,
namely, rights, deserts or need. These three criteria can be put under two
concepts of equality-- "formal equality" and "proportional equality". "Formal
equality" means that law treats everyone equal and does not favour anyone
either because he belongs to the advantaged Section of the society or to the
disadvantaged Section of the society. Concept of "proportional equality" expects
the States to take affirmative action in favour of disadvantaged Sections of the
society within the framework of liberal democracy.82
Social justice, in other words, is a matter involving the distribution of benefits and
burdens.
G Efficiency in administration
116. Critics of affirmative action programs in government services argue that such
programs adversely impact the overall competence or "efficiency" of government
administration. Critics contend that the only method to ensure "efficiency" in the
administration of government is to use a "merit" based approach-whereby candidates
that fulfil more, seemingly "neutral", criteria than others are given opportunities in
government services. The constitutional justification for this "efficiency" argument is
centred around Article 335.
335. The claims of the members of the Scheduled Castes and the Scheduled
Tribes shall be taken into consideration, consistently with the maintenance of
efficiency of administration, in the making of appointments to services and
posts in connection with the affairs of the Union or of a State:
[Provided that nothing in this Article shall prevent in making of any
provision in favour of the members of the Scheduled Castes and the
Scheduled Tribes for relaxation in qualifying marks in any examination
or lowering the standards of evaluation, for reservation in matters of
promotion to any class or classes of services or posts in connection
with the affairs of the Union or of a State.].
The proviso was inserted by the Constitution (Eighty-second Amendment) Act 2000.
117. The substantive part of Article 335 contains a mandate: a requirement to take into
consideration the claims of SCs and STs in making appointments to services and posts
in connection with the affairs of the Union or of a State. Consideration is much broader
in its ambit than reservation. The consideration of their claims to appointment is to be

in a manner consistent with maintaining the efficiency of administration. The proviso
specifically protects provisions in favour of the SCs and STs for: (i) relaxing qualifying
marks in an examination; (ii) lowering the standards of evaluation; or (iii) reservation
in matters of promotion. Reservation is encompassed within the special provision but
the universe of the latter is wider.
118. The proviso recognises that special measures need to be adopted for considering
the claims of SCs and STs in order to bring them to a level playing field. Centuries of
discrimination and prejudice suffered by the SCs and STs in a feudal, caste oriented
societal structure poses real barriers of access to opportunity. The proviso contains a
realistic recognition that unless special measures are adopted for the SCs and STs, the
mandate of the Constitution for the consideration of their claim to appointment will
remain illusory. The proviso, in other words, is an aid of fostering the real and
substantive right to equality to the SCs and STs. It protects the authority of the Union
and the States to adopt any of these special measures, to effectuate a realistic (as
opposed to a formal) consideration of their claims to appointment in services and posts
under the Union and the states. The proviso is not a qualification to the substantive part
of Article 335 but it embodies a substantive effort to realise substantive equality. The
proviso also emphasises that the need to maintain the efficiency of administration
cannot be construed as a fetter on adopting these special measures designed to uplift
and protect the welfare of the SCs and STs.
119. The Constitution does not define what the framers meant by the phrase "efficiency
of administration". Article 335 cannot be construed on the basis of a stereotypical
assumption that roster point promotees drawn from the SCs and STs are not efficient or
that efficiency is reduced by appointing them. This is stereotypical because it masks
deep rooted social prejudice. The benchmark for the efficiency of administration is not
some disembodied, abstract ideal measured by the performance of a qualified open
category candidate. Efficiency of administration in the affairs of the Union or of a State
must be defined in an inclusive sense, where diverse segments of society find
representation as a true aspiration of governance by and for the people. If, as we hold,
the Constitution mandates realisation of substantive equality in the engagement of the
fundamental rights with the directive principles, inclusion together with the recognition
of the plurality and diversity of the nation constitutes a valid constitutional basis for
defining efficiency. Our benchmarks will define our outcomes. If this benchmark of
efficiency is grounded in exclusion, it will produce a pattern of governance which is
skewed against the marginalised. If this benchmark of efficiency is grounded in equal
access, our outcomes will reflect the commitment of the Constitution to produce a just
social order. Otherwise, our past will haunt the inability of our society to move away
from being deeply unequal to one which is founded on liberty and fraternity. Hence,
while interpreting Article 335, it is necessary to liberate the concept of efficiency from a
one sided approach which ignores the need for and the positive effects of the inclusion
of diverse segments of society on the efficiency of administration of the Union or of a
State. Establishing the position of the SCs and STs as worthy participants in affairs of
governance is intrinsic to an equal citizenship. Equal citizenship recognizes governance
which is inclusive but also ensures that those segments of our society which have
suffered a history of prejudice, discrimination and oppression have a real voice in
governance. Since inclusion is inseparable from a well governed society, there is, in our
view, no antithesis between maintaining the efficiency of administration and considering
the claims of the SCs and STs to appointments to services and posts in connection with
the affairs of the Union or of a State.
120. This part of the philosophy of the Constitution was emphasized in a powerful

exposition contained in the judgment of Justice O Chinnappa Reddy in K.C. Vasanth
Kumar v. State of Karnataka MANU/SC/0033/1985 : (1985) Supp. SCC 714 ("K.C.
Vasanth Kumar"). The learned Judge held:
35. One of the results of the superior, elitist approach is that the question of
reservation is invariably viewed as the conflict between the meritarian principle
and the compensatory principle. No, it is not so. The real conflict is between
the class of people, who have never been in or who have already moved out of
the desert of poverty, illiteracy and backwardness and are entrenched in the
oasis of convenient living and those who are still in the desert and want to
reach the oasis. There is not enough fruit in the garden and so those who are
in, want to keep out those who are out. The disastrous consequences of the so-
called meritarian principle to the vast majority of the under-nourished, poverty-
stricken, barely literate and vulnerable people of our country are too obvious to
be stated. And, what is merit? There is no merit in a system which brings about
such consequences....83
Speaking of efficiency, the learned Judge held:
36. Efficiency is very much on the lips of the privileged whenever reservation is
mentioned...
One would think that the civil service is a Heavenly Paradise into which only the
archangels, the chosen of the elite, the very best may enter and may be allowed
to go higher up the ladder. But the truth is otherwise. The truth is that the civil
service is no paradise and the upper echelons belonging to the chosen classes
are not necessarily models of efficiency. The underlying assumption that those
belonging to the upper castes and classes, who are appointed to the non-
reserved posts will, because of their presumed merit, "naturally" perform better
than those who have been appointed to the reserved posts and that the clear
stream of efficiency will be polluted by the infiltration of the latter into the
sacred precincts is a vicious assumption, typical of the superior approach of the
elitist classes...84
121. The substantive right to equality is for all segments of society. Articles 15 (4) and
16 (4) represent the constitutional aspiration to ameliorate the conditions of the SCs
and STs. While, we are conscious of the fact that the decision in Indra Sawhney did not
accept K C Vasanth Kumar85 on certain aspects, the observations have been cited by us
to explain the substantive relationship between equal opportunity and merit. It
embodies the fundamental philosophy of the Constitution towards advancing
substantive equality.
1 2 2 . An assumption implicit in the critique of reservations is that awarding
opportunities in government services based on "merit" results in an increase in
administrative efficiency. Firstly, it must be noted that administrative efficiency is an
outcome of the actions taken by officials after they have been appointed or promoted
and is not tied to the selection method itself. The argument that one selection method
produces officials capable of taking better actions than a second method must be
empirically proven based on an evaluation of the outcomes produced by officials
selected through both methods.
Secondly, arguments that attack reservations on the grounds of efficiency equate
"merit" with candidates who perform better than other candidates on seemingly

"neutral" criteria, e.g. standardised examinations. Thus, candidates who score beyond a
particular "cut-off point" are considered "meritorious" and others are "non-meritorious".
However, this is a distorted understanding of the function "merit" plays in society.
123. As Amartya Sen notes in his chapter on "Merit and Justice",86 the idea of merit is
fundamentally derivative of our views of a good society. Sen notes,
Actions may be rewarded for the good they do, and a system of
remunerating the activities that generate good consequences would, it is
presumed, tend to produce a better society. The rationale of incentive
structures may be more complex than this simple statement suggests, but the
idea of merit in this instrumental perspective relates to the motivation of
producing better results. In this view, actions are meritorious in a
derivative and contingent way, depending on the good they do, and
more particularly, the good that can be brought about by rewarding
them....
...The concept of merit is deeply contingent on our views of a good society.
Indeed, the notion of merit is fundamentally derivative, and thus cannot be
qualified and contingent. There is some elementary tension between (1) the
inclination to see merit in fixed and absolute terms, and (2) the
ultimately instrumental character of merit-its dependence on the
concept of "the good" in the relevant society.
This basic contrast is made more intense by the tendency, in practice, to
characterise "merit" in inflexible forms reflecting values and priorities of the
past, often in sharp conflict with conceptions that would be needed for seeing
merit in the context of contemporary objectives and concerns...
Even though the typical "objective functions" that are implicitly
invoked in most countries to define and assess what is to count as
merit tend to be indifferent to (or negligent of) distributive aspects of
outcomes, there is no necessity to accept that ad hoc characterisation.
This is not a matter of a "natural order" of "merit" that is independent
of our value system....
(Emphasis supplied)
124. Once we understand "merit" as instrumental in achieving goods that we as a
society value, we see that the equation of "merit" with performance at a few narrowly
defined criteria is incomplete. A meritocratic system is one that rewards actions that
result in the outcomes that we as a society value.
1 2 5 . For example, performance in standardised examinations (distinguished from
administrative efficiency) now becomes one among many of the actions that the process
of appointments in government services seeks to achieve. Based on the text of Articles
335, Articles 16 (4), and 46, it is evident that the uplifting of the SCs and STs through
employment in government services, and having an inclusive government are other
outcomes that the process of appointments in government services seeks to achieve.
Sen gives exactly such an example.
If, for example, the conceptualisation of a good society includes the absence of
serious economic inequalities, then in the characterisation of instrumental
goodness, including the assessment of what counts as merit, note

would have to be taken of the propensity of putative merit to lessen-or
to generate-economic inequality. In this case, the rewarding of merit
cannot be done independent of its distributive consequences.
...
A system of rewarding of merit may well generate inequalities of well-being and
of other advantages. But, as was argued earlier, much would depend on the
nature of the consequences that are sought, on the basis of which merits are to
be characterised. If the results desired have a strong distributive
component, with a preference for equality, then in assessing merits
(through judging the generating results, including its distributive
aspects), concerns about distribution and inequality would enter the
evaluation.25
(Emphasis supplied)
Thus, the providing of reservations for SCs and the STs is not at odds with the principle
of meritocracy. "Merit" must not be limited to narrow and inflexible criteria such as
one's rank in a standardised exam, but rather must flow from the actions a society
seeks to reward, including the promotion of equality in society and diversity in public
administration. In fact, Sen argues that there is a risk to excluding equality from the
outcomes.
In most versions of modern meritocracy, however, the selected objectives
tend to be almost exclusively oriented towards aggregate
achievements (without any preference against inequality), and
sometimes the objectives chosen are even biased (often implicitly) towards the
interests of more fortunate groups (favouring the outcomes that are more
preferred by "talented" and "successful" Sections of the population. This can
reinforce and augment the tendency towards inequality that might be
present even with an objective function that inter alia, attaches some
weight to lower inequality levels.25
(Emphasis supplied)
1 2 6 . The Proviso to Article 335 of the Constitution seeks to mitigate this risk by
allowing for provisions to be made for relaxing the marks in qualifying exams in the
case of candidates from the SCs and the STs. If the government's sole consideration in
appointments was to appoint individuals who were considered "talented" or "successful"
in standardised examinations, by virtue of the inequality in access to resources and
previous educational training (existing inequalities in society), the stated constitutional
goal of uplifting these Sections of society and having a diverse administration would be
undermined. Thus, a "meritorious" candidate is not merely one who is "talented" or
"successful" but also one whose appointment fulfils the constitutional goals of uplifting
members of the SCs and STs and ensuring a diverse and representative administration.
127. It is well settled that existing inequalities in society can lead to a seemingly
"neutral" system discriminating in favour of privileged candidates. As Marc Galanter
notes, three broad kinds of resources are necessary to produce the results in
competitive exams that qualify as indicators of "merit". These are:
... (a) economic resources (for prior education, training, materials, freedom
from work etc.); (b) social and cultural resources (networks of contacts,

confidence, guidance and advice, information, etc.); and (c) intrinsic ability and
hard work...87
128. The first two criteria are evidently not the products of a candidate's own efforts
but rather the structural conditions into which they are born. By the addition of
upliftment of SCs and STs in the moral compass of merit in government appointments
and promotions, the Constitution mitigates the risk that the lack of the first two criteria
will perpetuate the structural inequalities existing in society.
1 2 9 . The Ratna Prabha Committee report considers in Chapter III, the relationship
between reservation in promotion and maintenance of efficiency in administration.
Finally, it concludes:
3.12: Conclusion:
Karnataka has been showing high performance in all the sectors of
development viz., finance, health, education, industry, services, etc., to
support sustainable economic growth. The analysis on performance of
the state in economic development clearly indicates that reservation in
promotions has not affected the overall efficiency of administration.
130. Moreover, even in a formal legal sense, promotions, including those in respect of
roster points, are made on the basis of seniority-cum-merit and a candidate to be
promoted has to meet this criteria [See in this context Rule 19(3) A and D of the
Karnataka Civil Services General Recruitment Rules 1977 which states that subject to
other provisions all appointments by promotion shall be on an officiating basis for a
period of one year and at the end of the period of officiation, if appointing authority
considers the person not suitable for promotion, she/he may be reverted back to the
post held prior to the promotion]. A candidate on promotion has to serve a statutory
period of officiation before being confirmed. This Rule applies across the board
including to roster point promotees. This ensures that the efficiency of administration
is, in any event, not adversely affected.
H The issue of creamy layer
131. At the outset, we analyse the submission of Ms. Indira Jaising, learned Senior
Counsel that the concept of creamy layer is inapplicable to the SCs and STs. This
submission which has been urged by the learned Counsel is founded on two hypotheses
which we have extracted below from the written submissions:
(i) This Court in Indra Sawhney seems to suggest that the creamy layer should
be excluded, however there was no unanimity for determining what is creamy
layer. Some judges took the view that the criteria for creamy layer exclusion is
social advancement (i.e. based on social basis, educational, and economical
basis) and Ors. took the view that it will be economic basis alone. It is
submitted that it must be kept in mind that the said judgment related only to
OBCs; and
(ii) Jarnail is not an authority for the proposition that the creamy layer principle
applies to SCs and STs. It dealt only with the competence of the Parliament to
enact a law in relation to creamy layer without affecting Articles 341 and 342.
132. Dr Dhavan, learned Senior Counsel in his response has urged that the above
submissions are incorrect because:

(i) Indra Sawhney decided the issue of creamy layer as a principle of equality;
and
(ii) Jarnail affirmed that if Nagaraj is rightly applied, creamy layer is a principle
of equality and of the basic structure.
133. Ms. Jaising's argument is based on the decision in Chinnaiah that the SCs and STs
cannot be split or bifurcated and the adoption of the creamy layer principle would
amount to a spilt in the homogenous groups of the SCs and STs. This argument
according to Dr Dhavan, was rejected in Jarnail by the Constitution Bench.
134. As a Bench of two judges we are bound by the decision in Indra Sawhney as
indeed, we are by the construction placed on that decision by the Constitution Benches
in Nagaraj and Jarnail. Construing the decision in Indra Sawhney. Nagaraj held:
120....Concept of egalitarian equality is the concept of proportional equality
and it expects the States to take affirmative action in favour of disadvantaged
Sections of society within the framework of democratic polity. In Indra
Sawhney [MANU/SC/0104/1993 : 1992 Supp (3) SCC 217: 1992 SCC (L&S)
Supp 1: (1992) 22 ATC 385] all the Judges except Pandian, J. held that the
"means test" should be adopted to exclude the creamy layer from the protected
group earmarked for reservation. In Indra Sawhney [MANU/SC/0104/1993 :
1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1: (1992) 22 ATC 385] this
Court has, therefore, accepted caste as a determinant of backwardness and yet
it has struck a balance with the principle of secularism which is the basic
feature of the Constitution by bringing in the concept of creamy layer. Views
have often been expressed in this Court that caste should not be the
determinant of backwardness and that the economic criteria alone should be the
determinant of backwardness. As stated above, we are bound by the decision in
Indra Sawhney [MANU/SC/0104/1993 : 1992 Supp (3) SCC 217: 1992 SCC
(L&S) Supp 1: (1992) 22 ATC 385]. The question as to the "determinant" of
backwardness cannot be gone into by us in view of the binding decision. In
addition to the above requirements this Court in Indra Sawhney
[MANU/SC/0104/1993 : 1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1:
(1992) 22 ATC 385] has evolved numerical benchmarks like ceiling limit of
50% based on post-specific roster coupled with the concept of replacement to
provide immunity against the charge of discrimination.88
Then again, in paragraphs 121, 122 and 123, the Constitution Bench held:
121. The impugned constitutional amendments by which Articles 16 (4A) and
16 (4B) have been inserted flow from Article 16(4). They do not alter the
structure of Article 16(4). They retain the controlling factors or the compelling
reasons, namely, backwardness and inadequacy of representation which
enables the States to provide for reservation keeping in mind the overall
efficiency of the State administration Under Article 335. These impugned
amendments are confined only to SCs and STs. They do not obliterate any of
the constitutional requirements, namely, ceiling limit of 50% (quantitative
limitation), the concept of creamy layer (qualitative exclusion), the sub-
classification between OBCs on one hand and SCs and STs on the other hand as
held in Indra Sawhney [MANU/SC/0104/1993 : 1992 Supp (3) SCC 217: 1992
SCC (L&S) Supp 1: (1992) 22 ATC 385], the concept of post-based roster with

inbuilt concept of replacement as held in R.K. Sabharwa [MANU/SC/0259/1995
: (1995) 2 SCC 745: 1995 SCC (L&S) 548: (1995) 29 ATC 481].
122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and
the compelling reasons, namely, backwardness, inadequacy of representation
and overall administrative efficiency are all constitutional requirements without
which the structure of equality of opportunity in Article 16 would collapse.
1 2 3 . However, in this case, as stated above, the main issue concerns the
"extent of reservation". In this regard the State concerned will have to show in
each case the existence of the compelling reasons, namely, backwardness,
inadequacy of representation and overall administrative efficiency before
making provision for reservation. As stated above, the impugned provision is an
enabling provision. The State is not bound to make reservation for SCs/STs in
matters of promotions. However, if they wish to exercise their discretion and
make such provision, the State has to collect quantifiable data showing
backwardness of the class and inadequacy of representation of that class in
public employment in addition to compliance with Article 335. It is made clear
that even if the State has compelling reasons, as stated above, the State will
have to see that its reservation provision does not lead to excessiveness so as
to breach the ceiling limit of 50% or obliterate the creamy layer or extend the
reservation indefinitely.89
1 3 5 . The reference before the Constitution Bench in Jarnail arose out of an initial
reference by a two judge Bench in State of Tripura v. Jayanta Chakraborty ("State of
Tripura") MANU/SC/1425/2017 : (2018) 1 SCC 146 and then by a three judge Bench in
State of Maharashtra v. Vijay Ghogre MANU/SC/1559/2018 : (2018) 15 SCC 64. The
order in State of Tripura states:
2....However, apart from the clamour for revisit, further questions were also
raised about application of the principle of creamy layer in situations of
competing claims within the same races, communities, groups or parts thereof
of SC/STs notified by the President Under Articles 341 and 342 of the
Constitution of India.90
136. Before the Constitution Bench in Jarnail, the learned Attorney General specifically
raised the following arguments:
3 . ...according to the learned Attorney General, the creamy layer concept has
not been applied in Indra Sawhney (1) [Indra Sawhney v. Union of India,
MANU/SC/0104/1993 : 1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 1] to
the Scheduled Castes and the Scheduled Tribes and Nagaraj [M. Nagaraj v.
Union of India, MANU/SC/4560/2006 : (2006) 8 SCC 212: (2007) 1 SCC (L&S)
1013] has misread the aforesaid judgment to apply this concept to the
Scheduled Castes and the Scheduled Tribes. According to the learned Attorney
General, once the Scheduled Castes and the Scheduled Tribes have been set out
in the Presidential List, they shall be deemed to be Scheduled Castes and
Scheduled Tribes, and the said List cannot be altered by anybody except
Parliament Under Articles 341 and 342. The learned Attorney General also
argued that Nagaraj [M. Nagaraj v. Union of India, MANU/SC/4560/2006 :
(2006) 8 SCC 212: (2007) 1 SCC (L&S) 1013] does not indicate any test for
determining adequacy of representation in service. According to him, it is
important that we lay down that the test be the test of proportion of Scheduled

Castes and Scheduled Tribes to the population in India at all stages of
promotion, and for this purpose, the roster that has been referred to in R.K.
Sabharwal v. State of Punjab [R.K. Sabharwal v. State of Punjab,
MANU/SC/0259/1995 : (1995) 2 SCC 745: 1995 SCC (L&S) 548] can be
utilised. Other counsel who argued, apart from the learned Attorney General,
have, with certain nuances, reiterated the same arguments.91
The decision in Jarnail specifically addressed the issue of creamy layer:
28. Therefore, when Nagaraj [M. Nagaraj v. Union of India,
MANU/SC/4560/2006 : (2006) 8 SCC 212: (2007) 1 SCC (L&S) 1013] applied
the creamy layer test to Scheduled Castes and Scheduled Tribes in exercise of
application of the basic structure test to uphold the constitutional amendments
leading to Articles 16 (4A) and 16 (4B), it did not in any manner interfere with
Parliament's power Under Article 341 or Article 342. We are, therefore, clearly
of the opinion that this part of the judgment does not need to be revisited, and
consequently, there is no need to refer Nagaraj [M. Nagaraj v. Union of India,
MANU/SC/4560/2006 : (2006) 8 SCC 212: (2007) 1 SCC (L&S) 1013] to a
seven-Judge Bench. We may also add at this juncture that Nagaraj [M. Nagaraj
v. Union of India, MANU/SC/4560/2006 : (2006) 8 SCC 212: (2007) 1 SCC
(L&S) 1013] is a unanimous judgment of five learned Judges of this Court
which has held sway since the year 2006. This judgment has been repeatedly
followed and applied....92
Justice Rohinton Nariman speaking for the Constitution Bench in Jarnail explained the
reason for applying the creamy layer principle:
25. However, when it comes to the creamy layer principle, it is important to
note that this principle sounds in Articles 14 and 16 (1), as unequals within the
same class are being treated equally with other members of that class.
137. We are thus unable to subscribe to the submission that Jarnail is not per curium
on the issue of creamy layer. For one thing, Jarnail specifically examined the decision in
Indra Sawhney, noticing that eight of the nine learned Judges applied the creamy layer
principle as a facet of the larger equality principle. In fact, the decision in Indra
Sawhney II v. Union of India MANU/SC/0771/1999 : (2000)1 SCC 168 ("Indra Sawhney
II") summarised the judgments in Indra Sawhney I on the aspect of creamy layer. The
judgment in Jarnail approved Indra Sawhney II when it held that the creamy layer
principle sounds in Articles 14 and 16 (1):
1 2 . In para 27 of the said judgment, the three-Judge Bench of this Court
clearly held that the creamy layer principle sounds in Articles 14 and
16(1) as follows: [Indra Sawhney (2) case [Indra Sawhney (2) v. Union of
India, MANU/SC/0771/1999 : (2000) 1 SCC 168: 2000 SCC (L&S) 1], SCC p.
190, para 27]
(i) Equals and unequals, twin aspects
27. As the "creamy layer" in the backward class is to be treated "on a
par" with the forward classes and is not entitled to benefits of
reservation, it is obvious that if the "creamy layer" is not excluded,
there will be discrimination and violation of Articles 14 and 16(1)
inasmuch as equals (forwards and creamy layer of Backward Classes)

cannot be treated unequally. Again, non-exclusion of creamy layer
will also be violative of Articles 14, 16(1) and 16(4) of the
Constitution of India since unequals (the creamy layer) cannot
be treated as equals, that is to say, equal to the rest of the
backward class...
Thus, any executive or legislative action refusing to exclude the
creamy layer from the benefits of reservation will be violative of
Articles 14 and 16(1) and also of Article 16(4). We shall examine the
validity of Sections 3, 4 and 6 in the light of the above principle.
(Emphasis in original)93
Jarnail discussed the decision in Chinnaiah and held that it dealt with the lack of
legislative competence on the part of the State legislatures to create sub-categories
among the Presidential lists Under Articles 341 and 342. The decision in Jarnail
therefore held that Chinnaiah did not deal with any of the aspects on which the
constitutional amendments were upheld in Nagaraj and hence it was not necessary for
Nagaraj to refer to Chinnaiah at all. In this view of the matter, we are clearly of the
view that Jarnail, on a construction of Indra Sawhney holds that the creamy layer
principle is a principle of equality.
138. Though, we have not accepted the above submission which was urged by Ms.
Jaising on behalf of the intervenors, we will have to decide as to whether the
Reservation Act 2018 is unconstitutional. The challenge in the present case is to the
validity of the Reservation Act 2018 which provides for consequential seniority. In other
words, the nature or extent of reservation granted to the SCs and STs at the entry level
in appointment is not under challenge. The Reservation Act 2018 adopts the principle
that consequential seniority is not an additional benefit but a consequence of the
promotion which is granted to the SCs and STs. In protecting consequential seniority as
an incident of promotion, the Reservation Act 2018 constitutes an exercise of the
enabling power conferred by Article 16 (4A). The concept of creamy layer has no
relevance to the grant of consequential seniority. There is merit in the submission of the
State of Karnataka that progression in a cadre based on promotion cannot be treated as
the acquisition of creamy layer status. The decision in Jarnail rejected the submission
that a member of an SC or ST who reaches a higher post no longer has a taint of
untouchability or backwardness. The Constitution Bench declined to accept the
submission on the ground that it related to the validity of Article 16 (4A) and held thus:
34....We may hasten to add that Shri Dwivedi's argument cannot be confused
with the concept of "creamy layer" which, as has been pointed out by us
hereinabove, applies to persons within the Scheduled Castes or the Scheduled
Tribes who no longer require reservation, as opposed to posts beyond the
entry stage, which may be occupied by members of the Scheduled
Castes or the Scheduled Tribes.69
(Emphasis supplied)
139. In sustaining the validity of Articles 16 (4A) and 16 (4B) against a challenge of
violating the basic structure, Nagaraj applied the test of width and the test of identity.
The Constitution Bench ruled that the catch-up Rule and consequential seniority are not
constitutional requirements. They were held not to be implicit in Clauses (1) to (4) of
Article 16. Nagaraj held that they are not constitutional limitations or principles but are
concepts derived from service jurisprudence. Hence, neither the obliteration of those

concepts nor their insertion would violate the equality code contained in Articles 14, 15
and 16. The principle postulated in Nagaraj is that consequential seniority is a concept
purely based in service jurisprudence. The incorporation of consequential seniority
would hence not violate the constitutional mandate of equality. This being the true
constitutional position, the protection of consequential seniority as an incident of
promotion does not require the application of the creamy layer test. Articles 16 (4A)
and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil
the width test. In the above view of the matter, it is evident that the concept of creamy
layer has no application in assessing the validity of the Reservation Act 2018 which is
designed to protect consequential seniority upon promotion of persons belonging to the
SCs and STs.
I Retrospectivity
140. Sections 3 and 4 of the Reservation Act 2018 came into force on 17 June 1995.
The other provisions came into force "at once" as provided in Section 1(2). Section 4
stipulates that the consequential seniority already granted to government servants
belonging to the SCs and STs in accordance with the reservation order with effect from
27 April 1978 shall be valid and shall be protected. In this context, we must note from
the earlier decisions of this Court that:
(i) The decision in Virpal Singh held that the catch-up Rule would be applied
only from 10 February 1995 which was the date of the judgment in Sabharwal;
(ii) The decision in Ajit Singh II specifically protected the promotions which
were granted before 1 March 1996 without following the catch-up rule; and
(iii) In Badappanavar, promotions of reserved candidates based on
consequential seniority which took place before 1 March 1996 were specifically
protected.
141. Since promotions granted prior to 1 March 1996 were protected, it was logical for
the legislature to protect consequential seniority. The object of the Reservation Act 2018
is to accord consequential seniority to promotees against roster points. In this view of
the matter, we find no reason to hold that the provisions in regard to retrospectivity in
the Reservation Act, 2018 are either arbitrary or unconstitutional.
142. The benefit of consequential seniority has been extended from the date of the
Reservation Order 1978 under which promotions based on reservation were accorded.
J Over representation in KPTCL and PWD
143. The Ratna Prabha Committee collected data from thirty one departments of the
State Government of Karnataka. It has been pointed out on behalf of the State that
corporations such as KPTCL and other public sector undertakings fall within the
administrative control of one of the departments of the State government. The position
in thirty one departments was taken as representative of the position in public
employment under the State. The over representation in KPTCL and PWD has been
projected by the Petitioners with reference to the total number of posts which have been
filled. On the other hand, the quota is fixed and the roster applies as regards the total
sanctioned posts as held in Sabharwal and Nagaraj. On the contrary, the data submitted
by the State of Karnataka indicates that if consequential seniority is not allowed, there
would be under representation of the reserved categories. Finally, it may also be noted
that under the Government Order dated 13 April 1999, reservation in promotion in

favour of SC's and ST's has been provided until the representation for these categories
reaches 15 per cent and 3 per cent, respectively. The State has informed the Court that
the above Government Order is applicable to KPTCL and PWD, as well.
K Conclusion
144. For the above reasons, we have come to the conclusion that the challenge to the
constitutional validity of the Reservation Act 2018 is lacking in substance. Following the
decision in B.K. Pavitra I, the State government duly carried out the exercise of collating
and analysing data on the compelling factors adverted to by the Constitution Bench in
Nagaraj. The Reservation Act 2018 has cured the deficiency which was noticed by B.K.
Pavitra I in respect of the Reservation Act 2002. The Reservation Act 2018 does not
amount to a usurpation of judicial power by the state legislature. It is Nagaraj and
Jarnail compliant. The Reservation Act 2018 is a valid exercise of the enabling power
conferred by Article 16 (4A) of the Constitution.
145. We therefore find no merit in the batch of writ petitions as the constitutional
validity of the Reservation Act 2018 has been upheld. They shall stand dismissed.
Accordingly, the review petitions and miscellaneous applications shall also stand
dismissed in view of the judgment in the present case. There shall be no order as to
costs. All pending applications are disposed of.
146. Before concluding, the Court records its appreciation of the erudite submissions of
the learned Counsel who have ably assisted the Court. We deeply value the assistance
rendered by Dr Rajeev Dhavan and Mr. Shekhar Naphade, learned Senior Counsel and
Mr. Puneet Jain, learned Counsel who led the arguments on behalf of the Petitioners. We
acknowledge the valuable assistance rendered to the Court by Ms. Indira Jaising, Mr.
Basava Prabhu S. Patil, Mr. Dinesh Dwivedi, Mr. Nidhesh Gupta and Mr. V.
Lakshminarayana, learned Senior Counsel.
1 Reservation Act 2018

2 SCs
3 STs
4 Reservation Act 2002
5 The Rules 1957
6 G.O. No. DPAR 29 SBC 77
7 O.M. No. DPAR 29 SBC 77
8 No. DPAR 13 SRR 92
9 The Rules 1977
10 Clauses (1) and (4) of Article 16 provide:
(1) There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
(4) Nothing in this Article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any backward class of citizens which,
in the opinion of the State, is not adequately represented in the services under the
State.
11 Supra 13, paragraph 809 at page 735

12 Ibid, paragraph 810 at page 735
13 Ibid, paragraphs 827, 829, 859 (7) and 860(8) at pages 745, 747, 768 and 771
14 Ibid at page 725
16 Ibid at page 728
18 Clause 16 (4A): Nothing in this Article shall prevent the State from making any
provision for reservation in matters of promotion to any class or classes of posts in the
services under the State in favour of the Scheduled Castes and the Scheduled Tribes
which, in the opinion of the State, are not adequately represented in the services under
the State.
22 10 February 1995
23 G.O. No. DPAR 10 SCBC 97
24 G.O. No. DPAR 21 SBC 97
25 Ibid
26 Ibid at page 672
27 Supra 6 at page 259
28 Ibid at pages 270-271
30 Ibid at page 278
31 Ibid at page 272
33 G.O. No. DPAR 182 SeneNi 2011
34 Ratna Prabha Committee report
35 The court was considering the provisions of the Andhra Pradesh Scheduled Caste
(Rationalisation of Reservations) Act 2000
36 Supra 49, paragraph 22 at page 422-423
38 Ibid, paragraph 26 at page 425-426
39 G.O. No. DPAR 186 SRS 2018
40 M.A. Nos. 730-756 of 2017
41 In I.A. No. 90623 of 2018 in W.P. (C) No. 764 of 2018
42 OBCs
43 In I.A. No. 102966 of 2018 in W.P. (C) No. 791 of 2018
44 Proviso inserted by GSR 64, dated 01.04.1992 w.e.f. 01.04.1992
45 Article 168. (1) For every State there shall be a Legislature which shall consist of the
Governor, and--
(a) in the States of [Andhra Pradesh], Bihar, [Madhya Pradesh], [Maharashtra],
[Karnataka], [[Tamil Nadu, Telangana]] [and Uttar Pradesh], two Houses;
(b) in other States, one House.
(2) Where there are two Houses of the Legislature of a State, one shall be known as the
Legislative Council and the other as the Legislative Assembly, and where there is only

one House, it shall be known as the Legislative Assembly.
47 Ibid at page 244
48 Supra 67 at pages 668-669
53 Ibid at page 340
54 Ibid at page 616
58 Ibid at page 407
60 Bhaiji v. Sub-Divisional Officer, Thandla MANU/SC/1154/2002 : (2003) 1 SCC 692 at
page 700, A Manjula Bhashini v. A.P. Monen's Coor. Finance Corporation Ltd.
MANU/SC/1128/2009 : (2009) 8 SCC 431 at paras 34, 40
61 Kerala State (Electricity) Board v. Indian Aluminum MANU/SC/0311/1975 : (1976) 1
SCC 466
62 K.S. Paripoornan v. State of Kerala MANU/SC/0200/1995 : (1994) 5 SCC 593
63 Burrakur Coal Co. Ltd. v. Union of India MANU/SC/0106/1961 : AIR 1961 SC 954 at
pages 956-957
65 Ibid at page 420
66 Ibid at page 259
67 Ibid at page 47
70 Ninth edition, Richard C Rich, Craig Leonard Brians, Jarol B Manheim and Lars B
Willnat, Longman Publishers
72 Ibid at page 751
75 (Volume XI) Debate on 25 August 1949.
76 (Volume XI) Debate on 23 August 1949.
77 (Volume VII) Debate on 30 May 1948.
79 Ibid at page 369

84 Ibid at page 738
85 Supra 139 at paragraph 613
86 Sen A, Merit and Justice, in Arrow, KJ, MERITOCRACY AND ECONOMIC INEQUALITY
(Princeton University Press 2000) (Amartya Sen, Merit and Justice).
87 Galanter M, Competing Equalities: Law and the Backward Classes in India, (Oxford
University Press, New Delhi 1984), cited by Deshpande S, Inclusion v. excellence: Caste
and the framing of fair access in Indian higher education, 40:1 South African Review of
Sociology 127-147.
92 Ibid at page 426
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MANU/SC/0738/2019

Neutral Citation: 2019/INSC /671

IN THE SUPREME COURT OF INDIA

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